Grants Pass Trust Co. v. Enterprise Mining Co.

113 P. 859 | Or. | 1911

Mr. Justice Moore

delivered the opinion of the court.

1. The statute giving a lien on mines, so far as involved herein, is as follows:

“Any person who shall furnish any provisions, materials or supplies for the working or development of any * * mine * * shall have a lien upon such mine * * to secure him the payment for the * * material furnished, which lien shall attach in every case to such mine.” Section 7444, L. O. L. “The liens provided for in this act are preferred liens.” Section 7447, L. O. L.

To uphold the decree rendered, electricity, when furnished at a mine for illumination or for power, must be construed to be a “supply,” thereby bringing It within the designation of the enactment quoted. As applied to material objects, a supply is understood, in its restricted sense, to mean any substance that is consumed with its use. A supply, in its more general signification, is anything required or furnished to meet a need. 8 Words & Phrases, 6802. As used in the statute under consideration, “supplies” undoubtedly comprise any substance the use of which might reasonably tend to the working or contribute to the development of a mine. Electricity, when employed to illumine a mine, enables laborers to work therein with almost the same success as in the daylight, thus materially contributing to the search for and the development of a mineral vein. The object of all mining operations is to secure valuable metals freed as much as practicable from all other substances. In quartz mining the crushing of rock containing mineral reduces the bulk by eliminating much of the superfluous matter, making it possible profitably to carry the resulting auriferous and argentiferous ores to market. By the use of suspended copper wires electricity can be transmitted from the place where it is generated to the mouth of a mine in almost inaccessible mountains and ravines, and there successfully used to operate quartz mills. Mines which a few years ago were almost worthless have, by the employment of electricity, become very valuable, affording profitable employment to laborers and yielding rich returns to the owners. Electricity is capable of propelling machinery and of illuminating mine and mill by continuous operation, and as this modern agent is consumed by its use, so far as susceptible of discernment, and supplies a very urgent need tending to the proper working and development of a mine, it is believed that such force is a supply within the scope of that term and for the use of which a lien may fairly be implied from the statute.

2. The Enterprise Mining Company stipulated in writing to pay the Condor Water & Power Company a minimum rate of $225 a month for electricity of a specified character and voltage with which to operate the mines and mill. It is asserted by plaintiff’s counsel that the evidence fails to show a use of the specified amount of power or that any of it was employed in the mine. The testimony shows that electricity was furnished at the mine of the quality and kind demanded by the terms of the contract, and, the supply having thus been delivered at the proper place, the burden of disproving the employment of the measure of the power was imposed on the Enterprise Mining Company, or on the plaintiff, who would succeed by the production of such proof: Fitch v. Howitt, 32 Or. 396, 409 (52 Pac. 192). No attempt, however, was thus made to defeat the lien.

3. It appears that prior to March 20, 1907, the Condor Water & Power Company undertook to secure a lien, but that its efforts in that direction were futile or unsatisfactory. The corrected lien was filed within the time limited therefor after furnishing the supplies, whereupon the preceding claims were abandoned. The right to file a proper lien continued until the expiration of the time allowed to file an original lien. Jones, Liens (2 ed.) § 1455.

4. The lien foreclosed was not filed until after plaintiff’s suit was instituted, but, as the material was furnished in part nearly a year prior to the execution of the mortgage, the lien was properly decreed to be prior to the mortgage: Henry v. Hand, 36 Or. 492 (59 Pac. 330).

Other errors are assigned, but, deeming them unimportant, the decree is affirmed. Affirmed.