Craig v. Crystal Realty Co.

MOORE, J. — 1. Pursuant .to a commission, issued by the clerk of Malheur County, Oregon, to John 0. McClintock, a notary public at Meadville, Pennsylvania, he, on August 1, 1916, without any stipulation and in the absence of the plaintiff, his counsel, or other representative, took the depositions of the defendants, Roska E. Kitch, Helen M. Kitch and H. Tyree, and with his certificate such sworn statements were mailed to the clerk of the court which appointed him. The envelope, containing these papers, was opened by order of the court at the trial, April 19, 1917, and though an objection interposed by plaintiff’s counsel to the reading of such sworn statements, on the ground that they had not been taken in the manner prescribed, was sustained and an exception allowed, the depositions were received in evidence under Section 405, L. O. L., and have been sent up with the transcript. It is contended by defendants’ counsel that an error was committed in refusing to consider the testimony so taken and returned. The testimony of any witness residing or found in Oregon may be taken under certain circumstances, by depositions in an action at law or a suit in equity: Section 837, L. O. L. Where a witness resides out of or is not found within this state, however, his testimony can only be taken in a suit — 30 — in equity by a special referee, selected for that purpose, whose duty it is to return to the court appointing him the testimony so taken: Section 838, L. O. L. In Marks v. Crow, 14 Or. 382 (13 Pac. 55), it was held that the statute then in force contained no provision for taking the deposition of a witness in a suit in equity, even de bene esse, unless a reference was made to find the facts. Since that decision was rendered the statute has been amended so as to authorize in some instances the submission of a cause to a referee, who is powerless to make any findings of fact in a suit in equity: Anthony v. Hillsboro Gold Min. Co., 58 Or. 258 (113 Pac. 442, 114 Pac. 95); In re Level, 81 Or. 298 (159 Pac. 558). “A referee is.a person appointed by the court or a judicial officer with power * * to take and report the evidence in a suit in equity”: Section 1012, L. O. L. “Subject to the limitations and directions prescribed in the order of reference, the trial by referees shall be conducted in the same manner as a trial by the court”: Section 165, L. O. L. “The referees shall file with their report the evidence received upon the trial”: Section 166, L. O. L. It will thus be seen that the testimony of a witness who is not a resident of or 'found within Oregon can only be taken in a suit in equity by a special referee appointed for that purpose, whose duties, for the term' of his selection are equivalent to those of the court which he thus represents. A trial by a referee in another state of a suit in equity pending in this state, does not 'authorize such appointee to take depositions to be used in Oregon, and no power is to be found in our statute for the appointment of a commissioner to take in another state depositions to be used in Oregon in a suit in equity. — 31 — An author in speaking of the sworn statements of a witness, received under such circumstances, remarks: “A deposition taken irregularly, and not in conformity with the requirements of law, is inadmissible as testimony, and may be excluded on motion at the trial of the cause”: Weeks, Depositions, § 366. No error was committed in refusing to permit such sworn statements to be received in evidence, or in declining to consider the testimony so given. 2, 3. The plaintiff, referring to the work which he performed, as stated in the lien notice first filed, testified that he plowed the land there described and moved the earth so broken up into the low places; prepared the soil for cultivation and made a ditch across the west end of the tract; that he did clearing and ditching, the work of which at the price agreed-upon amounted as stated in the first lien notice; that he had received payment on account thereof only as detailed, thereby leaving due the money so demanded; that he cleared the land described in the second notice of lien by removing the sagebrush then growing thereon; that he plowed and moved the earth as in the other tract, described in the first lien notice, and built along the west side of the north 40 acres a fill or dike from 6 to 26 inches high as a base for a ditch; that the work at the price specified amounted as stated in the second lien notice; that he had received on account thereof only the payments mentioned, and that there was due him the money thus undertaken to be recovered, together with the sum of $12, as expenses which had been incurred in preparing and filing the notices of lien and was entitled to other sums as attorney’s fee. It is contended by defendants’ counsel, that the principal work performed by the plaintiff consisted in leveling land, for which labor no lien is given. The — 32 — clause of the statute relied upon as conferring the right to resort to real property as security for labor performed in improving the premises, reads: “Any and all person or persons who shall hereafter clear any land or improve the same by ditching, diking, or tiling the same, at the request of the owner or person in the lawful possession of the same, shall have a lien on the said land so improved or cleared for his wages and charges for the said service, which lien shall be preferred to every other lien, mortgage, or encumbrance of a subsequent date”: Section 7439, L. O. L. In Pilz v. Killingsworth, 20 Or. 432, 435 (26 Pac. 305), Mr. Justice Bean says: ‘ ‘ The right to a lien is in derogation of the common law, and can only be established by a clear compliance with the requirements of the statute. The right is conferred by statute, and the party claiming such lien must show a substantial compliance with the statute, and by his complaint must bring himself within its provisions.” In Nicolai Bros. Co. v. Van Fridagh, 23 Or. 149, 150 (31 Pac. 288), the same justice further remarks: “We have repeatedly held that while the act relating to mechanics’ liens should be liberally construed, it is essential to the validity of a lien'that the claim filed should on its face show a substantial compliance with the provisions of the law, and that none of the essential requirements of the statute can be dispensed with.” Based upon these excerpts it has been frequently stated that a statute creating a lien is in derogation of the common law, and like all other enactments detracting from such ancient rules, it should be strictly construed. It is believed, however, that our decisions upon this subject can all be harmonized by holding that a statute creating a lien is remedial in character — 33 — and should be liberally construed in favor of the persons for whose benefit it was enacted: Ainslie & Co. v. Kohn, 16 Or. 363, 371 (19 Pac. 97); Willamette Steam Mills etc. Co. v. Shea, 24 Or. 40, 53 (32 Pac. 759); Sarchet v. Legg, 60 Or. 213, 218 (118 Pac. 203). But when the statute is so interpreted, a substantial compliance with its requirements is essential to the validity of the notice of lien, and in a suit for its foreclosure, the plaintiff by his complaint must bring himself within the purview of such beneficent rendering of the provisions of the enactment: Kezartee v. Marks & Co., 15 Or. 529, 535 (16 Pac. 407); Pilz v. Killingsworth, 20 Or. 432, 435 (26 Pac. 305); Gordon v. Deal, 23 Or. 153, 154 (31 Pac. 287); Curtis v. Sestanovich, 26 Or. 107, 115 (37 Pac. 67); Coffey v. Smith, 52 Or. 538, 540 (97 Pac. 1079). 4. Section 7439, L. O. L., was enacted and approved February 20, 1891 (Laws Or. 1891, p. 100), after the clearing and successful cultivation of sagebrush lands in Eastern Oregon had evolved from a state of experiment to a degree of certainty. Without the use of water to irrigate such lands when' improved, crops sowed or planted thereon usually perish in the almost constant sunshine of that arid region. The clause of the statute which provides for clearing any land or improving it by ditching, diking or tiling was evidently enacted to facilitate, by the employment of or contract with laborers, the cultivation of sagebrush lands where the use of water for irrigation is essential to the production of valuable crops. The limiting words “by ditching, diking or tiling” were undoubtedly employed to embrace every kind of work necessary to convert parts of an arid plain into profitable farms and fruitful orchards. The statute having been evidently designed to apply, more particu — 34 — larly, to sagebrush lands, the limiting words referred to should be so construed as to include every class of work and labor that might reasonably be embraced within the literal meaning of the terms so employed. The preparation of sloping surfaces for irrigation often requires, for the holding and diffusing of water, the making of small dikes or ridges to build which the earth must be removed from the higher places and used in forming small embankments, thereby necessitating a uniform- leveling of the land. As the word “diking,” when applied to the arid region of Oregon, means the raising of an embankment of earth, the use of that term in the statute necessarily implies a leveling of the land to accomplish which the person performing the work, at the request of the owner of the premises or of the person in the lawful possession thereof, is entitled to a lien for leveling real property for irrigation within a liberal construction of the enactment. The phrase “clearing land” must have different significations in various localities. Thus in the timbered sections of Oregon the term referred to probably means the cutting and removal or destruction of timber and brush, thereby leaving in the earth the stumps and roots, while in the arid regions of this state, which part of Oregon is usually covered with sagebrush, the clearing of such land evidently means not only the removal or destruction of the brush but the plowing or breaking up of the roots as well. The plaintiff’s testimony shows that the work which he performed was of that class for which liens are given. 5, 6. It is contended by defendants’ counsel that the work so done by the plaintiff was not performed at the request Of the owner of the real property or by the person in the lawful possession thereof. The defendant, — 35 — the Crystal Realty Company, a corporation, is the owner of the land upon which the liens are undertaken to be impressed. That owner could be in possession of the premises only by an agent, and could act only by such a representative. The testimony shows that the defendant Tyree, as agent for the owner of the land, had authority from his principal to bind it by the contract which he made with the plaintiff for the performance of the work set forth in the first lien. The last lien filed, in referring to the plaintiff, contains clauses which read: “That at the time said work and labor was performed by me as aforesaid, one H. Tyree was, and ever since has been, and now is, the owner and person in possession of said lands, and I was employed to perform said labor for T. Tyree by one J. F. Carnifix who was then and there the agent and contractor of the said H. Tyree and had authority from the said H. Tyree to employ me to perform said work and labor. * * That claimant was employed on the 4th day of August, 1914, by the said H. Tyree acting through his duly authorized agent, J. F. Carnifix, to clear, improve, level and dike the above described lands.” The plaintiff testified that two days after he began work on the land described in the second lien, Mr. Tyree visited the premises and directed him how to proceed, which commands were obeyed; that the improvement of the north 40-acre tract was so made under the supposition that Tyree was the owner of the real property; and though Mr. Carnifix originally requested the witness to do the work, he expected Tyree who instructed where and how the labor should be performed would pay therefor. Although the owner of the land did not originally contract with the plaintiff for, or consent to the per — 36 — formance of the work in improving the premises, the Crystal Bealty Company, by its agent Tyree, ratified and approved the labor which was so performed, thereby subjecting the real property to the lien: 27 Cyc. 72. We think there can be no doubt that the work described in the lien notices was performed at the request of the owner. 7. It is insisted that the second lien notice was not filed within 60 days after the completion of the work, as commanded by Section 7440, L. O. L. The testimony shows that the plaintiff commenced work on the north 40-acre tract August 7, 1914, and continued laboring on the premises until the ground froze so hard he was obliged to suspend operations; but that on March 25, 1915, he finished the work at the request of Tyree and within 60 days therefrom the second notice of lien was filed. When labor demanded by the terms of an original agreement has been omitted, the final completion of the work pursuant to the terms of the contract dates from the time such omissions are supplied by the lien claimant at the request of the owner: Avery v. Butler, 30 Or. 287, 292 (47 Pac. 706). That the work required to complete the improvement of the north 40 acres of the land was not considered finished January 20, 1915, when the first lien was filed and within 60 days from the time in which the ground froze, is seemingly evidenced from the fact that the second lien notice was not then given. A consideration of the entire testimony convinces us that the work performed in March, 1915, was done at Tyree’s suggestion to complete the contract and not to extend the time for filing the lien. It follows that the decree is affirmed. Affirmed.