Fernandez v. Burleson

Britt, C.

Plaintiffs, eight in number, united in this action under the permissive clause of section 1195 of the Code of Civil Procedure, to enforce liens claimed by them, respectively, for balances due from defendants •on account of labor performed by plaintiffs, severally, at the request of defendants, on a mining claim in Siskiyou county. Defendants constitute a mining partnership under the name of Burleson & Parsley; they owned a mining claim called the “ Bare Bar ” claim, and employed plaintiffs to work thereon; their answer admitted that the balances alleged are due to the plaintiffs, respectively, but denied that the work was done on the premises described in plaintiffs’ several claims of lien. There was judgment for the plaintiffs—seven of them—directing the sale of said “ Bare Bar ” property, and the application of the proceeds to the payment of the demands of the successful plaintiffs, with costs and attorneys’ fees; the correctness of the judgment depends upon the answer to the question whether the property thus directed to be sold is described at all in the claims of lien filed in the office of the county recorder under section 1187 of the Code of Civil Procedure. In this particular the notices were all in the same form; that of Fernandez, taken as an example, *166 stated: “I . . . . give notice of my intention to hold and claim a lien .... upon that certain mining claim situated in the Virginia Bar mining district, county of Siskiyou, state of California, particularly described as follows [giving a specific description by monuments, metes, and bounds], containing twelve acres, more or less, .... with all improvements, including wheels, pumps, and all mining facilities and appurtenances situated thereon. The said lien being claimed and held for .... work done .... upon said premises .... from the 27th day of June, 1892, to the 8th day of September, 1892, .... at the special instance and request of Burleson & Parsley, the owners and reputed owners thereof.”

It is conceded that the description by monuments, metes, and bounds, thus stated, does not apply in any part to the “Bare Bar” property, where plaintiffs did their work, but does apply with entire accuracy to art adjoining mining claim known as the “ Otto Bar,” in which defendants had, with other persons, some interest, but which was not worked at all during the year 1892. It was in evidence, however, that there were no wheels, pumps, or mining facilities on the “ Otto Bar ” mining claim, while there were such on the “ Bare Bar ” claim; that mines in the vicinity were “ generally known by the names of the parties running them that the “ Bare Bar ” claim was commonly called the Burleson & Parsley claim; that mining claims were somewhat numerous in that neighborhood, but defendants worked no other.

The court found that the claims of lien as filed contained a description of the property intended to be charged sufficient for identification, and that any one familiar with the locality can readily identify the “Bare Bar” mine as the mining claim which plaintiffs intended to charge with their liens. We discover no-evidence to justify this finding.

The contention of respondents’ counsel, as we understand it, is that the boundaries given in the claim of *167 lien may be disregarded, and that the other circumstances stated, viz., that the lien is claimed upon mining ground, in a specified mining district, with all improvements, including wheels, pumps, etc., situated thereon, for work done by the claimant between specified dates, at the request of Burleson & Parsley, the owners and reputed owners thereof, will “enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others,” and hence is sufficient. (Willamette etc. Co. v. Kremer, 94 Cal. 209 .) But, in the first place, there is no warrant in the law, or in the abstract equity of the case, for rejecting the boundaries by which the notice of lien states that the property is “ particularly described.” One of the most important requirements of the statute governing the creation of such liens is that the n otice shall contain a description of the property to be charged sufficient for identification. (Code Civ. Proc., sec. 1187.) Without such description the notice would in some instances be of no value to the owner, and could rarely be of any use to creditors, purchasers, or other lien claimants dealing with the land. (Phillips on Mechanics’ Liens, sec. 378.) If this were a case of mistake as to some incident of the description, the mistaken circumstance, like a false call in a deed, would be rejected (Willamette etc. Co. v. Kremer, supra)] but, on the contrary, the error is of the essence of the description. To reject the particular description' and rely on the adventitious circumstances which accompany it would be to invert the maxim that the incident follows the principal, and not the principal the incident (Civ. Code, sec. 3540); the notice of lien is not an instrument susceptible of reformation ( Goss v. Strelitz, 54 Cal. 640 ); therefore, the monuments and lines by which the property is said in the notice to be “ particularly described” cannot be expunged from the notice, but must be read as part of it; so read it is misleading in a particular where it should be substantially true. (Wagner v. Hansen, 103 Cal. 107 .) Secondly, were the *168 particular description omitted and the other circumstances stated in the notice alone consulted, we do not think that a person familiar with the locality merely could thereby identify the premises with reasonable certainty to the exclusion of others; he would also need to know that the claimant worked on the premises, and when he worked there—knowledge of which matters cannot be implied from mere knowledge of the locality. Besides, the statute requires that the notice itself must describe the., property on which the work was done. (Code Civ. Proc., secs. 1183, 1187.) A notice that the property to be charged is the property where claimant worked does not take the first step toward compliance with the statute. Nothing then remains except the reference to pumps, wheels, and mining facilities, and to the names of the owners; it is shown affirmatively that the defendants claimed and were reputed to own an interest in the “ Otto Bar” mine; and the reference to the wheels, pumps, etc., is—on our present assumption—to them as situate upon unascertained land. On these facts, at the very most, one might suspect that the “ Bare Bar” mine was intended, but that he could identify it with reasonable certainty to the exclusion of other premises is incredible.

The judgment and order should be reversed.

Haynes, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are reversed.

Temple, J., Henshaw, J., McFarland, J.