28 S.D. 549 | S.D. | 1912
This action was brought by Kirk G. Phillips and others against the Branch Mint Operating- Company, the Branch Mint Mining & Milling Company, the Union Trust Company of Philadelphia, and James D. Hardin. After appeal to this court, the original plaintiffs conveyed to the Union Trust Company of Philadelphia all their rights under and by virtue of the liens claimed herein, and this court, upon application duly made, has substituted said trust company as plaintiff and respondent. Such substitution having been made after -the decision herein was prepared, the wording of the following decision conforms to the title of said cause before the order of substitution.
Plaintiffs sought to foreclose miners’ liens which they claimed against the property of the defendant Branch Mint Operating Company, which company plaintiffs alleged was the owner of an interest in the property in question and the agent of the Branch Mint Mining & Milling- Company. Plaintiffs alleged that defendants Union Trust Company and Hardin each claimed some inter
Under the view which we take of this case, it becomes unnecessary for us to consider appellant’s contention that his lien is prior and superior to the alleged liens of respondents, and we will discuss the contention that, under the record herein, the court erred in holding that respondents had any lien upon the property of the mining and milling company. We will therefore omit the-findings of facts not bearing upon the latter point, merely noting that the court found facts showing that appellant had a valid; miner's, lien against the property in question.
The court based its conclusions and decree upon the following finding of fact: “(i) That during the times mentioned in the complaint the Branch Mint Operating Company was the owner of an interest in the property described in said complaint and was the agent of said Branch Mint Mining & Milling Company, and as such agent was operating the premises hereinbefore described, employing men and performing work and labor thereon, and purchasing supplies and materials which were used in the ordinary course of business in the operation of said premises, together with the cyanide mill situated thereupon, and that all of said work and labor and all of said 'supplies and materials tended to and did develop and improve the property described in the complaint. [The finding then sets out the performance of work by plaintiff as alleged in the complaint and the filing of liens therefor as therein alleged.]”
“(A) Findings of fact No. i, made at the request of the plaintiffs, is based entirely upon the terms and conditions of a lease executed by the Branch Mint Mining & Milling Company to the Branch Mint Operating Company, and filed for record * * * on November 16, 1908, which lease is as follows, to-wit: [Then follows a copy of the lease dated September 7, 1908, under which the operating company were given the right for the period of five years to enter upon the premises in question, use all of the improvements thereon, and conduct mining and quarrying operations, it to pay as rental the sum of $250 per month, and also set aside the one-third of “net” earnings as a fund from which the bonded indebtedness of the lessor should be entirely paid off. The lessor had the right to inspect the books of the lessee at any time, and lessee was to furnish lessor a semiannual statement of gross earnings, net earnings, payments made, etc. Net earnings were to be determined by deducting from gross earnings (a) necessary “operating expenses”; (b) expenses of maintaining lessee’s New York office; (c) taxes of lessee; (d) payment of necessary assessment work; (e) payment of insurance on property; (f) payment of interest on bonds of lessor; (g) payment of expenses to protect legal existence of lessor. Lessee covenanted to work and develop the mines on the leased property, and at end of lease to “deliver in good order, reasonable wear and tear and damages by the elements excepted, buildings, appurtenances, fixtures, and machinery herein leased.” Lessee was given right to in any manner develop the property for purpose of removing metal and mineral substances, and “to erect, maintain, equip any building, power house, railways, tramways, bridges, cuts, and rights of way which may be necessary for carrying out the purposes of this lease,” and “for preparing for market all ores or metals extracted from said property demised.” It was'also provided therein: “The party of the second part (lessee) further covenants and agrees that during its tenancy and occupation of the leasehold premises that it will keep the property free and clear of all indebtedness of any kind what*553 soever, and keep posted upon the property proper notices as required by the laws of the state of South Dakota that all indebted:ness incurred by the party of the second part shall in no way become á lien upon the property.”] (B) Finding's that during all the time the work was performed and material furnished by plaintiffs a notice that the mining properties in question were being operated by the defendant Branch Mint Operating Company under lease, and the lessor was not responsible for any debts incurred by lessee, was posted in several places upon the mill and hoist upon the property, and also published in a daily paper published in Deadwood, in the county where property was situated. (C) That all of said labor was performed and materials furnished under contracts made with the Branch Mint Operating Company, and by its officers in its name and behalf, and not ostensibly for or claiming to act as the agent of the Branch Mint Mining & Milling Company.”
Appellant assigns the following errors: “The court erred in holding that the Branch Mint Operating Company was the owner of an interest in the propert}' described in the complaint, and that it was the agent of the defendant Branch Mint Mining & Milling Company, and that as such agent it was operating the premises described. (2) The court erred in holding that the work and supplies performed and furnished by plaintiffs were so performed and furnished at the special instance of the defendant Branch Mint Mining & Milling Company. (4) The court erred in giving and entering judgment awarding plaintiffs a lien against the property of the Branch Mint Mining & Milling Company, and ordering a sale thereof in -satisfaction of the same.”
From finding A it appears 'that finding 1 is but a mere conclusion drawn from the provisions of the contract contained in finding A; and, if such conclusion is not supported by the terms of such contract, finding 1 must fall and with it the judgment in respondents’ favor.
Under chapter 182, Laws 1903, amending section 2573, Rev. Pol. Code, in order for one to acquire a miner’s lien, the work performed or material furnished must be -performed or furnished
Respondents contend that, “if a lessor authorizes the construction of improvements upon land belonging to him, he makes the lessee his agent for the purpose of making such improvements
It seems clear, then, that the agency, if any, of a lessee, must rest upon the peculiar provisions of the contract, upon the fact
In Griffin v. Hurley, 7 Ariz. 399, 65 Pac. 147, the court said: “It is quite common in xAvizona for -owners of mines or mining claims, who are not 'able to work and develop the mines themselves, to lease their mining property to some one win- is willing and able to work and develop it, which process comes within the common appellation of ‘chloriding’; and in many parts of the territory chloriding is a settled industry, furnishing employment and profit to thousands of miners. Such chloriding contracts or leases have not in view either tire improvement of the mine or its depletion, but only the operation of the mine for immediate profits, the same as the owner of a farm may lease his land to be cultivated, the lessee paying therefor as rent either money or a portion of the products. In such an operation a mine may be improved, it may be developed into a bonanza, or it may be worked out and depleted. To hold that one who has leased a mine and takes the bulk of the proceeds, paying the owner of the mine by a share of the profits as rental, can so operate the mine that the miners working for him can file liens against any other interest in the mine than that which the. lessee hJ.ds, would be destructive of the owner’s rights. No such right is given by statute. * * * It may sometimes be the case that he who is called a ‘lessee’ becomes an agent, and the instrument between the owner and the so-called lessee, although denominated a ‘lease,’ is in fact an operating contract for the benefit of the owner of the mine, in its development, in which case the so-called lessee mav be declared to be the agent of the owner of the mine, as in Eaman v. Bashford, 4 Ariz. 199, 37 Pac. 24.” The contract’ of lease in case at bar did not constitute the lessee an agent of the lessor with power to encumber the property of lessor with miners’ liens. If such agency existed, it rested upon facts dehors the said contract, and finding 1 must fall.
The judgment appealed from is reversed, and cause remanded to trial court.