103 P. 254 | Utah | 1909
Appellants, in tbeir complaint, after stating tbe necessary matters of inducement, in substance, allege: That on the 19th day of February, 1906, each of them obtained a judgment for specific amounts stated in the district court of Summit County, Utah, against the respondent “Comstock Silver Mining Company, hereafter called “Comstock Company” ; that thereafter, on the 10th day of April, 1906, executions were duly issued upon said judgments, which have been returned wholly unsatisfied; that said Comstock Company has no property upon which an execution can be levied, unless it is the owner of two certain parcels of mining ground which are a part of what is known as the “White Ilawk mining claim,” situated in said Summit County, which parcels were, by said Comstock Company, used for dumping purposes and for a shaft and shafthouse and hoisting works with the machinery and appliances connected therewith. The parcels of ground, which are described by metes and bounds, are somewhat irregular in shape; one being approximately 245 by 50 and the-other 245 by about 100 feet, more or less. It is further alleged that the White Hawk and Black Hawk mining claims are adjoining claims,, the north side line of the former being identical with the south side line of the latter, and the two parcels of ground each are within the boundaries of the White Hawk claim adjoining the south boundary of the Black Hawk claim,, and thus connect with the last-named claim, and in effect constitute an addition thereto.
It is further alleged. That said White Hawk mining claim, as appears from the records of Summit County, stands in the name of the respondent California Mining & Milling-Company, hereafter designated “California Company.”
To this complaint the respondents Comstock Company and H. A. McCornick demurred generally. The demurrer was sustained by the district court, and the appellants, electing to stand on their complaint, the court entered judgment dismissing the action, and hence this appeal.
Referring ta the brief of counsel for appellants, the question presented for decision, stated in their own language, is as follows: “The real issue is: does a lienor acquire rights to lands and to buildings situate thereon, and machinery contained therein, upon which he does not specifically claim a lien, and none of which are described or referred to in the claim of lien, on the ground that such land, buildings, and machinery are appurtenances of the lands and premises as actually described? Our contention is that he cannot.”
It will be observed that there is nothing alleged in the complaint which sheds any light on what the notice of intention to claim a lien contained, nor how the property was described therein, nor what the scope of the claim was, except what is made to appear from the decree of foreclosure and the order directing a sale of the four mining claims therein described by name and number; nor is there anything indicating what allegations were contained in the complaint under which a foreclosure of the lien was asked, nor what proof, if any, was made to the court, nor what its findings were upon which the decree of foreclosure and order directing a sale of the mining claims and their appurtenances were based. All we have before us are the allegations of the complaint. Considering them as a whole,
These parcels of ground and fixtures thereon were so clearly related to and connected with the principal thing, the mine and mining claims, that there is little, if any, room for doubt that both the parcels of land and fixtures were absolutely necessary in working the mine and in obtaining the usual benefits to be derived therefrom. The shaft, shafthouse, and hoisting works, together with the drifts leading from the shaft, and the other things, were as essential for ingress and egress to and from the underground workings of the mine as is an entrance to a hotel or other public or private structure. Had these things been constructed upon either one of the mining claims named, and which were worked together as a mine — and for the purposes of this decision we must assume that they were so worked — no one could doubt that all of them would have been an integral part of the mine itself. The only reason that made them, in one sense, an appurtenance, was that they were located upon ground to which the Comstock Company did not have the fee-simple title. The fact that the Corn-stock Company had a perpetual right to use the parcels of ground for the purposes stated in the complaint in no way made the right' therein more than a mere easement. The right to use the ground was for a special purpose merely. No right in or to either the mineral or the soil was granted, nor does it appear that the California Company surrendered entire control or dominion over the parcels of ground. No doubt, in so far as having control of the fixtures and shaft was concerned, the Comstock Company had complete control and dominion; but its control and dominion were not. the equivalent of a fee-simple title. The following authorities, we think, clearly demonstrate that the right of the Comstock Company in and to the two parcels of ground!
The four cases last referred to involve mechanics’ liens, and, so far as one can judge from the reasoning of the court, easements and appurtenances are governed by the same principles in mechanics’ lien cases as in grants generally. Of course the statute under which the lien is claimed must always be kept in mind in- determining the rights acquired by virtue of a mechanic’s lien. All courts agree that these liens are the mere creatures of some statute, and that unless the provisions of the particular statute creating the lien are substantially complied with no lien is acquired. With respect to the character of construction that mechanic’s lien laws ought to receive, the courts may be said to be in hopeless conflict. Much of this conflict, however, arises from the variant provisions contained in the statutes, and, at times, from the conflicting provisions of the same act. The more modern decisions, however, are to the effect that mechanic’s lien statutes should receive a fair and reasonable, if not a liberal, construction, with a view to preserving their spirit and effectuating their purposes. (Bender-Moss, Mechanics’ Liens, sec. 27; Phillips on Mechanics’ Liens [3 Ed.], sec. 16; Boisot on Mechanics’ Liens, sec. 37.) It may be further said that the more modem decisions
It would seem that this rule should prevail with full force in cases where liens have been established and foreclosed and rights have been acquired under the foreclosure sale by third parties. While, no doubt, the rights of subsequent creditors should not be defeated by a loose and unreasonable construction of the court’s decree in ordering specific property to be sold as being included within the lien, yet such decrees should receive a fair and reasonable construction as against proceedings in their nature collateral. As we understand counsel for appellants, they do not, at least not seriously, combat the general principles we have invoked. They do, however, insist that' under our mechanic’s lien statutes mere appurtenances are hot included unless the property on or against which the lien is claimed is specifically mentioned in the notice of.intention to claim a lien, .and, if not so mentioned, then such property, by force of the statute, is excluded. In other words, they contend that, while the lienor in the present instance might have acquired a lien by including the two parcels of ground with the improvements thereon in his notice, yet, by not mentioning them, they were, in point of both law and fact, excluded. This contention is based upon the general rule that, in acquiring a mechanic’s lien, the property must be described, and that no lien is acquired on property unless it is described or referred to in the lien notice or claim. It is apparent therefore that whatever doubt or difficulty exists in this case arises out of the general rule just stated. This requires us to place a construction upon our own lien statutes which, in some respects, is in harmony with, while, in others, different from, the statutes of other states upon the subject.
Section 13Y2, so far as material to the present inquiry, in substance, provides that:
“Mechanics, . . . and all persons of every class performing labor upon or furnishing material to he used in the construction, alteration, addition to, or repair, either in whole or in part, of any building, bridge, ditch, flume, acqueduct, tunnel, fence, railroad, wagon road, or other structure or improvement upon land, . . . shall have a lien upon the property upon which they have rendered service, or performed labor, or furnished materials.”
Section 13Y9 reads:
“The liens granted by this chapter shall extend to and cover so much of the land whereon such building, structure, or improvement shall be made, as may be necessary for the convenient use and occupation of such building, structure, or improvement, and*157 ■the same shall be subject to such lien; and in case any such building shall occupy two or more lots or other subdivisions of land, such lots or other subdivisions shall be deemed one lot for the purposes of this chapter, and the same rule shall hold in cases of any other such improvement that shall be practically indivisible, and shall attach to all machinery and other fixtures used in connection with any such land, building, or structures.”
Section 1381 reads as follows: ■
“The provisions of this chapter shall apply to all persons who shall do work or furnish materials for the working, preservation, or development of any mine, lode, mining claim, or deposit yielding metals or minerals of any kind, or for the working, preservation, •or development of any such mine, lode, or deposit in search of such metals or minerals, and to all persons who shall do work or furnish materials upon any shaft, tunnel,- incline, adit, drift, drain, or other •excavation of any such mine, lode, or deposit; provided, that when two or more such lodes or deposits, owned or claimed by the same person or persons, or where the owners are different persons, and the same with the consent of all shall be worked through a common shaft, tunnel, incline, adit, drift, or other excavation, then all the mine, lode, or deposit so worked shall, for the purposes of this chapter, be deemed one mine.”
Section 1386, in part, provides that any person claiming the benefit of this chapter must, within a time specified, ■“after furnishing' the last material or performing the last labor for any building, improvement, or structure, . . . ■or performance of any labor in or furnishing any material for any mining claim, file for record ... a claim in writing containing a notice of intention to hold and claim a lien . . . and also a description of the property to be charged with the lien sufficient for identification.”
In section 1387 it is provided that “liens against two or more buildings, mining claims, or other improvements owned by the same person or persons may be included in one claim,” but the claim must state the amount due on each building, mining claim, or other improvement.
There is only one other section to which we shall refer, •namely, section 1397, which provides for liens for boiler maters and foundry men especially, but mates all of the provisions of chapter 1 applicable in securing such liens.
In 2 Jones on Liens, section'1368, the author, in referring to this subject, says:
“In general tlie lien attaches not only to the land which the building covers, hut to the lot of land upon which it stands, and whatever belongs to the lot and is necessary to the enjoyment of the premises. This is a question of fact, not of law. The lien extends to appurtenances of the land or lot, if these are on the same lot; but it does not extend beyond the ground necessary for the proper enjoyment of the building, according to the intention and design of the owner.”
The lienor may claim more land than is found to be necessary, and thus it may devolve upon the court, in view of all the circumstances, to determine the quantity of land to be sold. (Willamette S. M. Co. v. Kremer, 94 Cal. 205, 29 Pac. 633.) As against a collateral
It is true that, in Kansas and Minnesota at least, it apt-pears from the opinions, the lien statute in terms extended the lien to appurtenances. It is also made to appear, from some of the cases at least, that the claim for a lien in terms included the things that were claimed as appurtenances, while in other’s it does not appear whether such appurtenances were specially referred1 to or not. Nor do the courts seemingly lay any stress upon this feature. Nor can we see wherein this is of compelling importance. If the thing is described in the notice of lien, the lien attaches, whether it be an appurtenance or not, if it is subject
What we have said so far is based upon the theory advanced by counsel for appellants that the claim for the lien in question comes within section 1372, and hence must be entirely controlled by that and by section 1379. We are, however,, dealing with a mechanic’s lien on a mine and mining claim, and, in view of this fact, we thint
We are of the opinion therefore that, for the purpose of acquiring mechanics’ liens against mining claims when operated as a mine, the mining claims constituting the mine and all the property necessarily used and
Taking the lien in question as an illustration, if any one had furnished material for the shafthouse and hoisting works and had filed a lien upon these structures alone, and this ■were permitted, the very entrance to the mine could be disconnected from the mine itself. The shafthouse and hoisting works would thus become useless without the mine, and it would be a useless thing without an entrance thereto. If a portion of the mine may thus be segregated, it may result in dismembering and in effect destroying almost the entire value of the mine as such. No one would contend that, if a mechanic had made repairs upon an expensive entrance to a hotel or other private structure such as the heating plant connected with such structure, he could claim a lien upon the entrance or heating plant alone, and in enforcing the lien could, by judicial process, sell the entrance or heating plant to one person while the main structure belonged to another, and in this way practically destroy the use of the entire structure until the owner,' or some purchaser of the main structure, yielded to the terms of the purchaser of the entrance or heating plant. The doctrine which, for the purpose of mechanics’ liens, treats mines and mining claims that are being actively operated and worked as a unit the same as other structures, is so manifestly just and equitable, and so well responds to the general utility involved,
In view of the foregoing, we with some hesitation, have •arrived at the conclusion that, under the allegations of the "complaint, when considered together, the two parcels of -ground, with appurtenances thereon, were essential to the. working of the mine and mining claims described in the decree of foreclosure and order of sale; that all of them, taken together, constituted an appurtenance to the mining claims described in the decree, and passed to the purchaser at the foreclosure sale -without specially describing or referring to either the parcels of ground or to the shafthouse, or hoisting works, or the other fixtures, and hence respondent H. A. McCornick, as the grantee of the purchaser at such sale, is the owner thereof. We desire to add that we have no inclination to either relax or depart from the wholesome rule that ordinarily nothing is covered by a mechanic’s lien except the property which is therein specifically referred to in terms or described in the notice of intention to claim a lien, and that such a description includes only such things as are necessarily used and connected with the property so described or referred to. Further, that the court, in
We are of the opinion that, in view of the conceded facts, the lien in question fairly responded to the foregoing rule.
The court therefore did not err in sustaining the demurrer, and the judgment is, accordingly, affirmed. Costs to» respondents.