Clark v. North

| Wis. | Apr 30, 1907

Cassoday, C. J.

Undoubtedly the statute gives to every person who performs any work or labor or furnishes any material in digging a well a lien upon the interest of the owner of any such structure, “or of the interest of the person causing such work or labor to be done, or such materials ... to be furnished, in and to the land upon which the same is situated, not exceeding forty acres,” and also provides that “such lien . . . shall also attach to and be a lien upon the real property of any person upon whose premises snch improvements are made, such owner having knowledge thereof cmd consenting thereto, and may he enforced as provided” therein. Sec. 3314, Stats. (1898). This last provision was incorporated into the section hy the amendment of 1885 (ch. 349).

The important question in the case is whether upon the facts in the record the plaintiff is entitled to a lien hy virtue of that amendment. Seven years prior to that enactment it was held hy this court that no lien could he enforced for a building erected on the land of a married woman, under a. contract with her husband in his own name and not as her agent, notwithstanding the building was so constructed “with the full knowledge, consent, and approbation” of the wife, who daily viewed and inspected the work while in process of construction. This was on the ground that there was no-personal liability of the wife. Lauer v. Bandow, 43 Wis. 556" court="Wis." date_filed="1878-01-15" href="https://app.midpage.ai/document/lauer-v-bandow-6602466?utm_source=webapp" opinion_id="6602466">43 Wis. 556. Such ruling was followed by other cases to the same effect. Leismann v. Lovely, 45 Wis. 420" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/leismann-v-lovely-6602682?utm_source=webapp" opinion_id="6602682">45 Wis. 420; Wright v. Hood, 49 Wis. 235" court="Wis." date_filed="1880-04-20" href="https://app.midpage.ai/document/wright-v-hood-6603131?utm_source=webapp" opinion_id="6603131">49 Wis. 235, 5 N. W. 488; Challoner v. Bouck, 56 Wis. 652" court="Wis." date_filed="1883-01-30" href="https://app.midpage.ai/document/challoner-v-bouck-6604005?utm_source=webapp" opinion_id="6604005">56 Wis. 652, 656, 14 N. W. 810; Engfer v. Roemer, 71 Wis. 11" court="Wis." date_filed="1888-02-28" href="https://app.midpage.ai/document/engfer-v-roemer-6605993?utm_source=webapp" opinion_id="6605993">71 Wis. 11, 15, 36 N. W. 618; Heath v. Solles, 73 Wis. 217" court="Wis." date_filed="1888-12-22" href="https://app.midpage.ai/document/heath-v-solles-8183018?utm_source=webapp" opinion_id="8183018">73 Wis. 217, 222, 40 N. W. 804, 806. This last case was decided three years after the amendment, and it is therein stated, in the opinion of Mr. Justice Tayloe, that the amendment “was intended to change the law as theretofore existing in this state, as interpreted by the decisions of this court.” It is there further said:

“If the owner permits a husband or wife, child, parent, or a stranger to erect a building on his or her land, with his or her knowledge and consent, under the clear meaning of the statute his or her interest in the real estate is charged with a lien for tire unpaid work or materials.” To the same effect: North v. La Flesh, 73 Wis. 520" court="Wis." date_filed="1889-02-19" href="https://app.midpage.ai/document/north-v-la-flesh-8183056?utm_source=webapp" opinion_id="8183056">73 Wis. 520, 529, 41 N. W. 633; Edwards & M. L. Co. v. Mosher, 88 Wis. 672" court="Wis." date_filed="1894-12-11" href="https://app.midpage.ai/document/edwards--mcculloch-lumber-co-v-mosher-8184682?utm_source=webapp" opinion_id="8184682">88 Wis. 672, 676, 60 N. W. 264.

In. a later case it was Reid, in effect, that where the contract for the improvement of a building owned by a wife was made by the husband in his own name and not as agent, without any communication directly or indirectly with the wife, her consent to do the work could not be implied from mere silence; that her mere neglect to advise the contractors of her ownership of the property could not be construed to be the consent contemplated in the statute. Coorsen v. Ziehl, 103 Wis. 381" court="Wis." date_filed="1899-06-02" href="https://app.midpage.ai/document/coorsen-v-ziehl-8186324?utm_source=webapp" opinion_id="8186324">103 Wis. 381, 386, 79 N. W. 562. In that case Mr. Justice Baudeen, among other things, said:

“The proof is that she [the wife] was not consulted before the contracts were made, and that she did not in any way sanction or direct the wort as it progressed. She lived in the building with her husband, and undoubtedly knew of the work as it progressed, and from these facts it is argued that she is brought within the terms of sec. 3314.”

He then cites cases relied upon by counsel to support such arguments, and above cited. The court continues:

“But there is a clear distinction between these cases and the case at bar. In each case there was proof of the express consent of the owner to the erection of the building upon which the lien was claimed. Here there is no such proof. .- . . Consent cannot be inferred from mere silence, under these circumstances.”

In the case at bar the well was drilled by the plaintiff pursuant to an agreement with one Rodgers, who paid him therefor except for the tubing here sought to'be collected, as mentioned in the foregoing statement. The complaint alleges that the well was drilled “at the special instance and request of the defendant,” but there is no evidence tending to show any contract relation between the plaintiff and defendant. On the contrary it is established, and in fact undisputed, that when the plaintiff told the defendant that Rodgers had sent him there to drill the well the defendant told him “that Mr. Rodgers was to furnish the well complete and that the defendant would not pay for anything in connection with the well.” Tbe plaintiff bad no contract relations with any one except Bodgers, and the defendant had no contract relations with any one except Bodgers. He is not attempting to enforce any lien, and the plaintiff is not attempting to enforce any subcontractor’s lien. It is in effect conceded that the defendant had knowledge that the well was being drilled at the time it was being constructed. The controversy is whether the defendant consented to such construction within the meaning of the statute quoted. The word “consent” is defined to be the “voluntary allowance or acceptance of what is done or proposed to be done by another. In law — intelligent concurrence in a contract or an agreement of such a nature as to bind the party consenting; agreement upon the same thing in the same sense.” Century Diet. Numerous adjudications might be cited in harmony with such definitions. 2 Words & Phrases, 1437, 1438.

Two instructive cases are cited by counsel for the defendant. One was under a statute giving a lien in favor of any person erecting any building upon the land of another “by virtue of an agreement with or consent of the owner of the land upon which such building is erected.” A husband contracted in his own name for the construction of two houses on the land of his wife, who had previously consented to such erection on the promise of the husband that he would pay for them, she not supposing that her land was liable to a lien therefor, but saw the buildings being erected and made no objection, and gave no notice to the builder that the land was hers, and the builder did not know that the title was in the wife; and it was “held not to constitute a consent of the wife, within the meaning of the statute.” Huntley v. Holt, 58 Conn. 445" court="Conn." date_filed="1890-02-17" href="https://app.midpage.ai/document/huntley-v-holt-6582702?utm_source=webapp" opinion_id="6582702">58 Conn. 445, 449, 20 Atl. 469, 470. Andrews, C. J., speaking for the court, there said:

. “Consent means the unity of opinion; the accord of minds; to think alike; to be of one mind. Consent involves the presence of two or more persons, for without at least two persons there cannot be a unity of opinion, or an accord of minds, or any thinking alike. When the statute uses the words ‘by the consent of the owner of the land,’ it means that the person rendering the service or furnishing the materials and the owner of the land on which the building stands must be of one mind in respect to it.”

The* other case was under a statute giving a lien for improvements made “with the consent of the owner,” and the court said:

“Mere acquiescence in the erection or alteration, with knowledge, is not sufficient evidence of the consent which the statute requires. There must be. something more. Consent is not a vacant or neutral attitude in respect of a question of such material interest to the property owner. It is affirmative in its nature. It should not he implied contrary to the obvious truth, unless upon equitable principles the owner should be estopped from asserting the truth,” De Klyn v. Gould, 165 N. Y. 287, 59 N.E. 97" court="Ind. Ct. App." date_filed="1901-01-02" href="https://app.midpage.ai/document/salem-bedford-stone-co-v-hilt-7062831?utm_source=webapp" opinion_id="7062831">59 N. E. 97.

Certainly, the plaintiff and defendant were not of one mind as to who should pay for the tubing of the well. The same is true as to the defendant and Rodgers. According to the evidence and' the findings of the court the only consent the defendant ever gave to Rodgers or the plaintiff was on condition that the well should be furnished complete without any expense or payment on the part of the defendant. Such conditional consent was in effect a protest against the construction of the well at the expense of the defendant in whole or in part. There was in effect a waiver-of any supposed lien. Davis v. La Crosse H. Asso. 121 Wis. 579, 99 N. W. 351.

What has been said covers all the questions calling for consideration.

By the Court. — The judgment of the circuit court is affirmed.