Kendall v. Hynes Lumber Co.

MaRshall, J. The sole question which requires consideration in this case is, Does the evidence support the verdict ? It is undisputed that a large part of the work done after March 20, 1895, was in driving piles and in building docks ■ and tramways for permanent use in connection with the sawmill. True, such structures were necessary to the business of manufacturing logs into lumber, but only in the sense that the sawmill was necessary; and it could not be seriously contended that work done in constructing the mill would constitute a lien upon the logs to be manufactured therein, or the lumber .there manufactured from such logs. Sec. 3329, S. & B. Ann. Stats., provides that “ any person who shall do or perform any labor or services in cutting, felling, hauling, running,” etc., “or manufacturing into lumber, any logs,” etc., shall have a lien upon such logs and lumber. It is a remedial statute, and, in the interest of labor, the rules of liberal construction should be applied in determining its scope and meaning, as has frequently been decided by this court. Jacubeck v. Hewitt, 61 Wis. 96; Kollock v. Parcher, 52 Wis. 393; Hogan v. Cushing, 49 Wis. 169; Winslow v. Urquhart, 39 Wis. 260. But, without doing violence to the [662] language of the statute, we cannot so construe it as to include work done in the original construction of any part of a sawmill plant to be used in manufacturing logs into lumber and caring for the manufactured product till moved off from the mill premises. In Glover v. Hynes L. Co. 94 Wis. 457, we held that work done in making permanent improvements to a sawmill is not within the statute. The same rule applies to permanent improvements and necessary appurtenances to the sawmill property. Work in the construction of the mill and such necessary improvements and appurtenances is clearly separate and distinct from wTork in the operation of the mill. The former is clearly not within the descriptive words of the statute; the latter is. It follows from what has preceded that the evidence does not support a verdict in plaintiff’s favor for all the work done by him between the 21st day of October, 1894, and the 21st day of September, 1895. That necessarily leads to the consideration of another question, which does not appear to have occurred to the trial court or counsel for the appellants, but should be determined on this appeal for the purposes of a new trial. ' Sec. 3831, S. & B. Ann. Stats., provides that, for work done between the 1st day of November and the 1st day of May following, the claim for a lien shall be filed on or before the 1st day of June following, and for work done after the 1st day of May and before the 1st day of November following, or for continuous work from the 1st day of November, or a day prior thereto, to and beyond the 1st day of May following, the claim for a lien shall be filed within thirty days after the last day of doing such work. This language received construction in McGinley v. Laycock, 94 Wis. 205, to the effect that the plain legislative intent of the statute was to divide claims for liens into three classes, with reference to the time of filing the lien petition: First, claims for work done between the 1st day of November and the 1st [663] day of May following, whether continuous or not, the particular dates being used inclusively; second, work done after the 1st day of May and before the 1st day of November following, whether continuous or not, the dates being used exclusively ; and third, work commenced on the 1st day of November or a day prior thereto, and continued to a day after the 1st day of May following. This classification was obviously made so as to fairly protect the laborers without unnecessarily inflicting loss and damage upon other interests,— particularly the interests of those who might deal with the property in the regular course of trade and commerce. To that end, considering that work done from the DLst day of November to the 1st day of May following is .ordinarily in logging operations, and is continuous, so that such work itself reasonably furnishes notice of the existence of the lien, and that during such period business transactions in regard to transfers of the property are ordinarily not active, the laborer is given till the 1st day of June following to file his claim for a lien therefor; and considering that ■from the 1st day of May to the 1st day of November following, which includes the manufacturing season, when the manufactured product is ordinarily moved within short periods, and disposed of to consumers in the due eourse of trade and ■commerce, thirty days from the completion of the work is limited for filing the claim; and considering that continuity ■of work reasonably furnishes notice of the existence of a. lien for work done, commencing on the 1st day of November, or ■ a day prior thereto, and continuing to a day after the 1st day of May following, the laborer is given thirty days after 'the completion of such work to file his lien petition. Erom 'this it is clear that, when a claim for a lien'for work done prior to the 1st day of May in any year is not filed till after ■the 1st day of June following, it is absolutely essential to the maintenance of such lien that it be shown that the work '.commenced on the 1st day of the November preceding, or a [664] day prior thereto, and continued without material interruption to within thirty days of the time of such filing. The abandonment of the work for any period within the time-mentioned, or the doing of work of a character not within the statute, breaks the necessary continuity required, and is-fatal to the claim for all work done prior to the 1st day of' May preceding such filing. It follows from what has preceded that the work done by plaintiff before the 1st day of November, 1894, was lost by failure to file the lien claim within thirty days after its completion, and that the work done in building the docks, driving piles, and making tramways, for which plaintiff was not entitled to a lien, broke the continuity of his lienable work done on and after the 1st day of November, 1894, so that the filing of the claim October 9, 1895, was only effectual to preserve to plaintiff his lien for the lienable work done after the 1st day of May preceding. By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.