| Wis. | May 15, 1900
1. Plaintiff has no lien unless it is given him by- virtue of secs. 3314, .3315, Stats. 1898. The former section provides, in substance, that every person who, as principal contractor, performs any work or labor or furnishes any material in digging or constructing any well shall have a lien upon the interest of the owner in the land upon which the same is situated, not exceeding one acre if within the limits of a city. Sec. 3315 provides substantially that every person who, as subcontractor of the principal contractor, performs ány work or labor for or furnishes any materials to the parties named in the preceding section, shall have the lien and remedy provided by that chapter upon performing certain conditions, which it is admitted were performed in this case. Plaintiff’s right to a lien is-based upon the fact that he hired his well-boring machine to Jorgenson, who had the contract to bore the well. Laws giving liens to mechanics are equitable in their character, and are to be liberally construed to advance their objects; yet they are purely statutory, and cannot be extended bj1, construction to cases not fairly and reasonably within their purview. It will be observed that the statute speaks of “work and labor” performed or “materials” furnished. Under no permissible theory can it be said the plaintiff has furnished any “ materials ” that entered into or became a component part of the well. "Whatever right he has, if any, arises from the use ,of his machine. When he hired it to Jorgenson, to all intents and purposes it became the latter’s machine, the same as if he had purchased it outright. The plaintiff did no manual labor, either by himself or his servants, toward the construction of the well. The machine was used by Jorgenson as though it was his own. For its use in connection with his own labors he would have been
2. The second question involved in this case is whether Jorgenson and Egelhoff were partners in drilling this well. The court made no specific finding as to the fact, but the conclusion arrived at was adverse to the appellants’ contentions. Egelhoff was given a lien for materials furnished by him to Jorgenson to the amount of $100.33, and a personal judgment for $34.02. This finding ought not to be disturbed unless we can say that it is clearly against the evidence. Jorgenson testified positively that such partnership existed. Egelhoff denied it, but at the same time admitted that he had no particular arrangement in regard to the deal, only that he was to get the machine and furnish the materials. He also admitted that the materials furnished were put in at cost price. After much evasion and shifting, he also admitted that he “ may have had it on shares,” and that he supposed he was to have a part of the profits. Independent of his denial, every reasonable probability in the case tends to show that he was interested as a partner in the contract. His conduct during the progress of the work is not reconcilable upon any other theory. Add to this his want of frankness, and the evasive and equivocal character of the testimony given by him on cross-examination, and we find it impossible to give much weight to his denial. Upon the whole evidence we think it is clearly and almost conclusively
3. If it were admitted that the liens could be enforced, still the judgment in its present form could not be sustained. The complaint described the land in controversy as being within the limits of the city of Milwaukee, and to consist of three and three-fourths acres. The statute only allows alien upon one acre when the land is within the limits of a city. No evidence was offered to locate the well upon any specific acre of land; hence the court had no authority to single out and adjudge a lien upon any given portion of the whole tract, without some evidence upon which such a determination could be based;
By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint and the answer of the defendant Egelhoff.