162 Pa. 118 | Pa. | 1894
Opinion by
This is an appeal from the refusal of the court below to take
It seems to us that the first question presented for our consideration is whether the plaintiff had a common-law lien upon the logs. If we concede that he had such a lien, we are then to inquire whether there was such interference with or disturbance of the property bound by it as rendered the sheriff a trespasser in making the levy and sale.
It is indispensable to the existence of a common-law lien that the party who claims it should have an independent and exclusive possession of the property. Had the plaintiff such possession of the logs ? They were not on his land. They were on the Dixon tract, but whether Maxwell purchased it with the timber, the evidence does not inform us, nor is it material. The possession of the timber was in the owner of it, and that possession was not changed or affected by the arrangement under which the logs were cut and skidded by the plaintiff. The latter was not a bailee of the timber or of the logs cut therefrom. He was employed to cut the timber into logs and put them in his employer’s mill pond. There was nothing in the nature of his employment which gave him an independent
• The cases cited in support' of the plaintiff’s claim are not analogous to the case at bar. They were cases in which the lienor had an independent possession of the property as a bailee, or in which the lien was created by the agreement of the parties. In this case there was no bailment or stipulation for a lien.
The fundamental error in the plaintiff’s contention lies in his assumption that he had an independent possession of the property, when in fact such possession as he had was that of his employer. Maxwell was in possession of the Dixon tract for the work the plaintiff did for him there, whether he owned it or not; the land on which the timber lay and the logs were cut and skidded was in his possession for the purpose for which his emploj'ee used it. It follows that the rights of the plaintiff in respect to lien and possession were the same as if his employer owned the land on which the work was done. In cutting and skidding the logs where he did he was exercising his employer’s right to cut and skid them there.
We conclude upon a careful consideration of the plaintiff’s testimony in reference to the agreement under which he did the work, that he was not entitled to a common law lien upon the logs, and that if he had a statutory lien dr preference for all or
The specifications of error are overruled.
Judgment affirmed.