Lead Opinion
This is а suit to foreclose a logger’s lien. The plaintiff-appellant rendered services in two capacities, first, in scaling while in the pond the logs hereinafter referred to and, second, in acting as a watchman to look after and care for the lоgs so scaled and while they were still in the same pond. To insure payment for this labor, plaintiff filed what is commonly known as a logger’s lien.
The defendant Hansen Pacific Lumber Corp. had, in the first instance, obtained and secured the logs and thereafter delivered thеm afloat to the pond of the defendant Nekoma Lumber Co. The notice of lien, which is appended as an exhibit to plaintiff’s complaint, names both of said defendants as the reputed owners of said logs but states that the plaintiff’s employment was contracted by Nekoma Lumber Co.
Subsequent to the filing of the lien, the defendant Hansen Pacific Lumber Corp. secured the release of the logs by filing a bond under the provisions of § 67-1310, OCLA. On this bond the defendant United Pacific Insurance Company is surety. Shortly after filing his lien, plaintiff cоmmenced a suit to foreclose. Hansen Pacific Lumber' Corp. and the insurance company joined in a demurrer to plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of suit against them. Although duly served, the defendant Nekoma Lumber Co. did not appear. The demurrer of the other defenedants was sustained; and upon plaintiff’s failure to plead further, his
Section 67-1301, OCLA, under which the lien was filed, provides:
‘‘Every person performing labor upon or who shall assist in obtaining or securing sawlogs, spars, piles, eordwood, or other timbers, has a lien upon the same for the work or labor done upon or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook in a logging, or other camp, and any and all others who may assist in or about a logging, or other camp maintained for obtaining or securing sawlogs, spars, piles, cord-wood, or othеr timber, shall be regarded as a person who assists in obtaining or securing the sawlogs, spars, piles, eordwood, or other timber herein mentioned.”
One of the defendants’ reasons for assailing the complaint is predicated upon the proposition that the notice of lien contains lienable and non-lienable items not segregated. The portion of the notice of lien so challenged reads as follows:
“* * * That the name of the owners, or reputed owners is Nekoma Lumber Co. and Hansen Pacific Lumber Corp., that Hal Hildebrant and Kenneth Gray of Nekoma Lumber Co., employed said A. E. Kidder to perform such labor and render such assistance upon the following terms and conditions : to scale said logs as same delivered to pond, to care for logs in pond and to watch said pond and to keep said logs in safe condition, and to watch same, at the wage of $2.00 per hour 48 hours per week, and that said work was done for the benefit of all defendants, that said contract has been faithfully performed and fully cоmplied with on the part of said A. E. Kidder who performed labor upon and assisted in cutting and getting out said logs for the*413 period of 148 days; that such labor and assistance were so perf ormed and rendered upon said property between the 21st day of June 1950, and thе 15th day of November 1950; and the rendition of said services was closed on the 15th day of November 1950, and thirty days have not elapsed since that time; that the amount of claimant’s demand for said services is 770% hrs at $2.00 per hour or the sum of $1541.00 and 71 hrs at $3.00 per hour overtime or thе sum of [$] 213.00 or a total sum of $1754.00 that no part thereof has been paid, except $815.00 [sic] in various payments and there is now due and remaining unpaid thereon, after deducting all just credits and offsets the sum of $1139.00 in which amount he claims a lien upon said property.”
The dеcisive question in this matter is whether or not plaintiff’s services as a scaler fall within the purview of § 67-1301, OCLA. If the answer is in the negative, then it follows that the lien must fail, for if we assume that plaintiff’s services as a watchman are protected by that section or by § 67-1302, OCLA, then it is obvious from the face of the lien that there has been a commingling of lienable and nonlienable items impossible of segregation and, therefore, fatal to the validity of the claimed lien. Phillips v. Graves,
At the very threshold of our inquiry we are confronted with a determination of what is the proper rule of construction to apply when ascertaining what persons or classes of persons are beneficiaries under a statutory lien of this kind. Plaintiff urges that a liberal construction is in order. Defendants, to the contrary, argue for a strict construction. The answer must be resolved in favor of a strict construction when seeking to discover, as here, who can enjoy the status of lienor.
Our most recent statement on this point will be found in Timber Structures v. C. W. S. G. Wks.,
“* * * a claimant to such a lien must in the first instance bring himself clearly within the terms of the statute. The statute is strictly construed as to persons entitled to its benefits and as to the procedure necessary to perfect the lien; but when the claimant’s right has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment * *
In Pilz v. Killingsworth et al. (1891)
“* * * The object and purpose of the act is to protect those persons who, by their labor, skill, or material, have contributed to the enhancement in value of the owner’s property, and this object should be kept in view in interpreting the language used * *
We think the words of Mr. Justice Bean are applicable here. It is equally apparent to us that the object and purpose of the logger’s lien act was to protect those persons who labor in and around logging camps in what are commonly known as logging operations and who, by their labor and skill in some manner connected with and incidental to the conversion of
Assuming for the moment that plaintiff’s labor and services were rendered within the bounds of a logging camp, we mоve to consider whether or not a scaler is entitled to invoke the benefits of § 67-1301, OCLA.
The right to a laborer’s lien is statutory and, in the absence of a specific law, such a right would not exist; one claiming the benefit of a lien statute must bring himself clearly within its terms. Boise-Payette L. Co. v. Dominican Sisters,
A scaler hаs been defined as “An expert person employed to determine the number of board feet and the per cent of unsound timber.” 54 CJS, Logs and Logging, 677, § 1(i). Also see Connecticut Valley Lumber Co. v. Stone, 212 F 713, 715; State ex rel. Hospes v. Lumberman’s Board of Exchange, 33 Minn 471,
Common knowledge, as well as the foregoing definition, teaches that scaling does not comprehend assistance “in obtaining or securing sawlogs”. Puget Sound Log Scaling & G. Bureau v. Danaher L. Co., 121 Wash 309,
Section 67-1301, OCLA, was taken from the Washington logger’s lien statute and in 1891 was embodied into our law with few modifications and changes. North Pacific Lumber Co. v. Lang,
In Puget Sound Log Scaling & G. Bureau v. Danaher L. Co., supra, the Washington court held that the provision for loggers’ liens did not embrace the services of a scaler, saying:
“* * * It is plain that a sealer is not one who assists in obtaining or securing sawlogs, as they were already obtained and secured and in the boom when the scaling and grading took place. The question, then, narrows to whether a scaler is included within the meaning of ‘every person performing lаbor upon.’ The purpose of the scaling was not to change the character of the logs in any particular; they are in exactly the same state after being scaled as before * * V’
Kline v. Comstock, supra, and Meands v. Park, supra, were considered by the court in the Puget Sound case and disposed of as follows:
“ * * * The case of Kline v. Comstock,67 Wis. 473 ,30 N. W. 920 , cited by the respondent, is not controlling, because in that case it was conceded*417 that the plaintiff had a lien for the amount of his services as a scaler. The case of Meands v. Park,95 Me. 527 ,50 Atl. 706 , cited by the appellant, is nоt in point, because the statute of the state of Maine then being construed was not so closely similar to the statute of this state as to make the holding in that case an authority upon the question here presented.”
We concur in the foregoing analysis of the Wisconsin and Maine holdings.
The logs scaled by plaintiff in the instant matter, in the words of the Washington decision, “are in exactly the same state after being scaled as before”, which is tantamount to saying that their value had not been enhanced by the services of the scaler. Pilz v. Killingsworth et al., supra,
To hold that every person performing labor upon logs includes the services of one scaling them would extend the statute beyond the meaning of the words used and, as we believe, beyond the legislative intent and would result in bringing under the protecting um
There is yet another and equally cogent reason for denying plaintiff the benefit of a logger’s liеn. •
The title, necessarily being a part of a legislative act, can be resorted to as a valuable aid in construing it and determining the legislative intent. Eugene School Dist. No. 4 v. Fisk,
Section 67-1301, OCLA, was originally the act found in Oregon Laws 1891, p. 117. The first sentence thereof, in which we are particulаrly interested, has remained unchanged during the half century intervening since its enactment, except for the inclusion of the word “cordwood” by ch. 17, Oregon Laws, 1915.
The title to the act of 1891 reads: “ [An Act] To Protect Laborers in Timber and Logging Camps * * It carries the connоtation that the “camp” is the situs or area of a logging operation within which the labor for which a lien is claimed must originate or accrue. A “logging operation”, as the words are employed by us, ordinarily means “the business of felling trees of merchantable size for lumber, cutting them into logs and transporting the logs to sawmills or market.” Pierson v. General Plywood Corporation, 76 Ga App 853,
Plaintiff’s complaint and notice of lien plainly reveal that his work as a scaler and as a watchman was rendered in or about a mill pond of the bjekoma Lumber
The decree will be affirmed.
Concurrence Opinion
specially concurring.
I concur in the result, predicating my conclusion solely upon the second ground set forth in the opinion of the court.