174 P. 1008 | Idaho | 1918
Respondents own certain mining claims in Shoshone county, concerning which, on September 3, 1915, they entered into an agreement with J. D. and Watson Beebe, who later assigned their interests to the Colonial Mining & Milling . Company. While this company, by virtue of the provisions of the contract, was in possession of the claims, it employed appellants to perform labor thereon. Subsequently appellants were discharged without being paid, whereupon they filed claims of lien against the property and have brought this action to foreclose them. The court sustained respondents’ general demurrer to the amended complaint, which alleged, in detail, the facts above stated, and from a judgment of dismissal thereafter entered, this appeal is taken.
The material parts of the agreement mentioned, which was set forth in full in the amended complaint, will be found in the opinion in Smith v. Beebe, ante, p. 469, 174 Pac. 608, wherein this court held the contract to be not one of purchase and sale, but an option to buy, coupled with the right of possession under certain conditions. By the effect of its provisions, the position of the Colonial Mining & Milling Company, during the course of appellants’ employment, was that of a tenant of, or lessee from, respondents. (Settle v. Winters, 2 Ida. 215, 10 Pac. 216; Block v. Murray, 12 Mont. 545, 31 Pac. 550.)
Rev. Codes, see. 5110, provides: “Every person .... who performs labor in any mine or mining claim, has a lien upon the same for the work or labor done .... whether done . ... at the instance of the owner .... or his agent; and every contractor, subcontractor , ... or any person having charge of any mining claim, .... shall be held to be the agent of the owner for the purpose of this chapter: Provided, That the lessee or lessees of any mining claim shall not be considered as the agent or agents of the owner under the provisions of this chapter.”
Sec. 5113 specifies what property shall be subject to the lien if, at the commencement of the work, the land belonged to the person who caused it to be performed, and concludes as follows: “but if such person owns less than a fee-simple
From these statutes it is apparent that respondents’ interest in the mining claims is not lienable for work done at the instance of their tenant, unless they caused the work to be done, or made the tenant their agent within thé meaning of the provisions of see. 5110. To do either would require some additional act, understanding, or arrangement, over and above the granting of possession of the premises upon condition that the lessees would occupy and use the same for certain purposes and under certain rights and privileges, at their own expense, and return to the owners a portion of the profits. (See Block v. Murray, supra.) That the respondents ever did anything more than enter into the original option agreement does not appear from the amended complaint, and their demurrer thereto was properly sustained.
Although dealing with statutes differing somewhat from our present law, the following authorities are pertinent: Steel v. Argentine Min. Co., 4 Ida. 505, 95 Am. St. 144, 42 Pac. 585; Block v. Murray, supra; Harper v. Independence Development Co., 13 Ariz. 176, 108 Pac. 701; Oregon Lumber & Fuel Co. v. Nolan, 75 Or. 69, 143 Pac. 935, 148 Pac. 474; Dierks & Sons Lumber Co. v. Morris, 170 Mo. App. 212, 156 S. W. 75; Marty v. Hippodrome Amusement Co., 173 Mo. App. 707, 160 S. W. 26; Walter C. Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. 443; Griffin v. Hurley, 7 Ariz. 399, 65 Pac. 147.
We find no error in the record. The judgment appealed from is affirmed. Costs are awarded to respondents.
Petition for rehearing denied.
