No. 847 | 8th Cir. | Mar 1, 1897
after stating the case as above, delivered the opinion of the court.
1. The lease executed by the appellant to Robert H. Reid on April 1, 3 895, was valid and effectual as a lease and demise of the mining property. The covenants constituted a valuable and sufficient consideration, and under the lease he on that day became entitled to the immediate possession and use of the leased property, and it is admitted that the possession of the property passed on that day from the appellant to said Reid.
2. The terms of the lease did not constitute Reid the agent of the appellant in organizing the United Leasing Company. It was competent for the lessor to stipulate in its lease that the lessee should organize such a company to assume the lease and carry on the business, and Reid, in organizing such company, was fulfilling Ids covenants in that behalf. So also the provision that the stock of such new company should first be offered to stockholders of the appellant to subscribe for, or not, at their option, would not make fhe new corporation identical with the appellant, even if all the stock had been so subscribed for a.s to have included all the stockholders of the appellant. The corporation would not only differ in organization, but in objects and functions. Richmond & I. Const. Co. v. Richmond, N. I. & B. Ry. Co., 15 C. C. A. 289, 68 F. 105" court="6th Cir." date_filed="1895-05-07" href="https://app.midpage.ai/document/richmond--i-const-co-v-richmond-n-i--b-r-8852786?utm_source=webapp" opinion_id="8852786">68 Fed. 105; Exchange Bank of Macon v. Macon Const. Co. (Ga.) 25 S. E. 326. It follows from the foregoing that the possession and working of the mine passed from the appellant on April 1, 1895, to its lessee, Reid, and soon afterwards to the United Leasing Company, upon Reid’s transfer of the lease, and that at the time of the furnishing of material by the appellee and other lieu claimants the mine was being worked, not by the owner, the appellant, but by its substituted lessee, tbe United Leasing Company, under the lease which took effect, and under which the lessee entered into the possession of the mine, on the 1st day of April, 1895.
3. The lien law of Colorado at the time this lease went into effect provided for a lien in favor of all persons who should perform work or furnish material in the working of a mine, but with this exception: “Provided further, that this section shall not be deemed to apply to the owner or owners of any mine, lode, deposit, shaft, tunnel, incline, adit, drift, or other excavation, when the same shall be worked by lessee, or lessees.” Sess. Laws Colo. 1893, p. 321, § 8. On April 33, 3895, by another act of the legislature of Colorado, tin; proviso was changed so as to read as follows: “Provided further. that this section shall not be deemed to apply to the owner or owners of any mine, lode, deposit, shaft, tunnel, incline, adit, drift, or other excavation, who shall lease the same in small blocks