5 Alaska 118 | D. Alaska | 1914
The liens are claimed, and this-action to foreclose them is brought, under the provisions of the Act of Congress of June 6, 1900, 31 Stat. 534, c. 786 (Civil Code, §§ 262-275; Comp. Laws Alaska 1913, §§ 691— 704). While this act requires that the notice of lien recorded shall contain the names of the owners, or reputed owners, of the ground upon which the lien is claimed, it is well established that failure to include all of the owners does not render the notice invalid, but that it may be enforced against the owners named; the only effect of the omission of the name of any owner being to exempt his interest from the operation of the lien. The omission of Wichman’s name, therefore, from the notices of lien, does not render the liens ineffective, as against the other owners, and he is not a necessary party to this action, although, of course, any interest he may have-in the property could not be bound by any judgment given herein. The law provides:
“That every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration, or repair, in whole or in part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner for the purposes of this-Code.” Comp. Laws 1913, § 691.
And under other provisions of the act any lienable improvement made upon lands is held to have been made at the-instance of the owner, if made with such owner’s knowledge, and he does not duly post a notice disclaiming liability. It is under these provisions, evidently, that the plaintiff alleges in his complaint that his agreement of employment was made with Enstrom Bros, as agent of the other defendants; and proof that the labor was performed, or improvements upon the property were made, with the knowledge of such owners, would be sufficient proof of agency on the part of Enstrom Bros, to bind the owners, unless such owners are able to contradict the'effect of this presumption by-proof of giving notice of nonliability,-as required by the statute. The evidence sufficiently established the fact that labor was performed to>
While it has been held that under the act in question laborers have a 1-ien-for “labor devoted to cleaning up and washing the gold taken out of the mine,” and that such labor is done upon a mine within the meaning of this act (Cascaden v. Wimbish, 161 Fed. 246, 88 C. C. A. 277), it is now well settled that under this act a lien can be had for labor performed upon a mine only when it tends to the improvement or development of the mine, and that work done in the course of actual mining operations, involving the extraction of gold, not tending to the development or improvement of the mine, but rather to the lessening of its value by the extraction of gold therefrom, is not lienable under this law (Pioneer Mining Co. v. Delamotte, 185 Eed. 754, 108 C. C. A. 90; Andrews v. Ladd, 188 Fed. 313, 110 C. C. A. 291). While all labor done in sinking shafts and running tunnels, preparatory to drifting and hoisting, may, in a sense, be considered as mining, yet the distinction seems to be clearly established between such work and the work of drifting, hoisting, and washing bodies of pay dirt after the preliminary development work has been done. Under this view, the plaintiff would be entitled to a lien for all of the labor performed by him, except that done in connection with the sluicing above ground for a period •of about 26 days; and the other lien claimants would be entitled to a lien claim for all labor performed by them. The
“Every building or other improvement mentioned in section six hundred and ninety-one, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein; and the interest owned or claimed shall be subject to any lien filed in accordance with * * * this Code, unless such owner or person having or claiming any interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon the land, or upon the building or other improvement situated .thereon.” Section 694, Comp. Laws Alaska 1913.
Wheeler testified that early in September, 1912, he posted notices which fully complied with this section, on behalf of himself and his co-owners, one some 30 or 40 feet from where the working shaft subsequently was sunk, and one between 700 and 800 feet above there, on the part of the mining‘claim leased to Enstrom Bros., and some 30 or 40 feet from the traveled road. There was also the evidence of several others to the effect that they had seen such notices, although there was some dispute in the evidence as to whether the upper notice was on the part leased to Enstrom Bros, or not. Both of the Enstrom brothers testified to the notice near the working shaft, and that it remained in position until some time in the latter part of October. The most positive testimony as to the date when it was last seen is that of Louis Enstrom, who says that it was there on October 18th, and that the notice had disappeared some five or six days later, when he returned to the premises, after having been absent for that time. The defendant Beegler was positive that he saw this notice as late, as November, but was unable to give any rea
“The statute requires that the owner shall, within three days after he has knowledge of the fact that alterations or repairs are being madet give notice that he will not be responsible for the same by posting a notice in writing to that effect in some conspicuous place on the land or building or other improvement situate thereon. Section 5643, B. & C. Comp. The form and subject-matter of the notice in question are obviously sufficient, but the inquiry is whether it was kept in place a sufficient length, of time, so that it might be said that the owner gave notice of his refusal to be responsible for the improvements. * * * The statutory manner of giving notice is by posting a written announcement; presuming, no doubt', that when once posted it will remain a sufficient length of time to impart knowledge to the persons.it is intended to affect. The language is not to keep it posted, but to give notice by posting, and when once posted it will fulfill the mandate of the statute. Of course, if the notice were torn down immediately, or very soon after, by the one who posted it, there would be an apparent attempt to evade the statutory injunction, and the act would probably not be accounted as giving notice by posting ; but, if. posted in good faith, with the intent and purpose that it should remain as long as a notice would remain in a place of that nature under ordinary conditions, it would seem that the intendment of the statute had been observed and the notice given.” Marshall v. Cardinell, 46 Or. 410, 80 Pac. 653.
As at least one notice, in compliance with the statute, was posted in a conspicuous place upon the mining claim by the owners, it seems that was sufficient to relieve them from the liability sought to be imposed upon them in this action. As to the defendants Wheeler, Beegler, and Wagner, the action may be dismissed, and a decree entered against Enstrom Bros, for the amount of plaintiff’s claims for labor, preparing and filing notices of liens, and costs, including an attorney’s fee of $250.