55 P. 867 | Or. | 1900
Lead Opinion
This suit was brought in the Circuit Court of Douglas County by J. Frank Watson to foreclose certain material men’s liens on a mining claim in that county, belonging to the defendant, the Noonday Mining Co. The John A. Roebling’s Sons Co., a foreign corporation, was made a defendant, under the allegation that it had or claimed some interest in or lien upon the mine, but that such interest or claim was subsequent to and subject to plaintiff’s lien. It answered, denying that its claim or lien was subsequent to that of plaintiff, and setting up a lien for materials furnished" by it to the contractor and agent of the Noonday Mining Co., which it alleges is superior to the lien of plaintiff. The Noonday Mining Co. answered, putting in issue the validity of both liens ; and a trial resulted in a decree establishing
Decided 31 July, 1899.
On Motion for Leave to Withdraw an Appeal Bond.
2. This is a motion for leave to withdraw from the files of this court an undertaking on appeal, and for an order releasing the sureties thereon. When the appeal was taken, an undertaking was filed for all damages, costs and disbursements which might be awarded on the appeal, and, as the appellant supposed and was advised, for a stay of proceedings .also. Thereafter the respondent caused an execution to be issued, and upon a hearing relating thereto before the circuit judge it was decided that the undertaking was not sufficient to stay proceedings, and thereupon the appellant caused to be filed an amended undertaking on appeal, and for a stay of proceedings also, and now desires to withdraw the one first filed. But we do not think the motion therefor should be allowed. These undertakings are voluntary obligations, and are a part of the record
Opinion on the Merits
Decided 5 May, 1900.
On the Merits.
This is a suit by J. Frank Watson to foreclose the liens of certain material men. The transcript shows that the defendant, the Noonday Mining Co., a corporation, being the owner of a mine in Douglas County, Oregon, entered into a contract with the Hammond Manufacturing Co., a corporation, in fulfilling which the latter erected for it a stamp mill, and built a tramway from the mill to the mine, procuring material therefor from the parties and of the value following, to wit: Smith & Watson Iron Works, $2,223.81; Goldsmith & Loewenberg, $351.93; San Francisco Novelty & Plating Works, $286.89 ; William Isensee, $343.57; Gutta Percha & Rubber Manufacturing Co., $903.03; Lakin & Lee, $148.68; Goodyear Rubber Co., $178.69 ; and Henshaw, Sewell & Cowston, $574.01. The parties furnishing such material not having been paid therefor, filed liens against the mill and tramway and the Noonday Mining Co.’s interest in the premises on which such improvements were made, and thereafter assigned their claims to plaintiff, who commenced this suit to foreclose the liens, alleging that the defendants, the John A. Roebling Sons Co., a corporation, Al. Parker, Daniel M. Tracy, and Charles F. Morse claimed some interest in said premises, but that such interest was subordinate to his liens. The Noonday Mining Co. demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of Auit, and
Affirmed.
The legislative assembly of this state evidently did not consider that the word “structure,” as used in the general lien law (Section 3669, Hill’s Ann. Laws), included a mine or mining claim, for at the same session at which said section was amended, a separate act was passed securing liens on mining claims : Laws, 1891, p. 76. Section 1 of said act provides : ‘That every person who shall do work or furnish materials for the working or development of any mine, lode, or mining claim or deposit yielding metals or minerals of any kind, or for the working 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, or other excavation, designed or used for the purpose of draining or working any such mine, lode, or deposit, shall have a lien upon the same, to secure to him the payment of the work or labor done or materials furnished by each respectively which shall attach in every case to-such mine, lode, and deposit, and though- such shaft, tunnel, incline; adit, drift, or other excavation be not within the limits of such mine, lode, or deposit.” In Williams v. Toledo Coal Co. 25 Or. 426 (42 Am. St. Rep. 799, 36 Pac. 159), it was held, in construing this section, that no lien could attach for labor performed in constructing a wagon road where it did not appear, either in the notice of lien or in the complaint in a suit to foreclose the same, that such wagon road was an incline or excavation used for the purpose of working the mine. The reduction of ore near the mines from which it is taken must, by saving the cost of transportation, necessarily benefit the mine owner to the extent of the expense thus saved, but such reduction, however beneficial it may prove when accom