Smith v. Sherman Mining Co.

Blake, C. J.

This is an appeal from a judgment for the foreclosure of six mechanics’ liens upon a lode mining claim. There is no material difference in the facts upon which the respective demands rest, and all depend upon the same legal propositions. We will set forth the exhibits, which are made a part of the complaint of Smith, to illustrate the questions which have been discussed by counsel:—

“State of Montana, 1 County of Meagher, j ss'

“Exhibit B. Landon A. Smith, affiant, makes oath, and says that the annexed is a true and correct account of the labor performed and material furnished by him to and for the Sherman Mining Company, at Castle Mountain Mining District, in said county, and that the account hereto annexed (marked ‘Exhibit A,’ and made a part hereof) is just and true, and there is due thereon, after allowing all credits thereon, the sum of one hundred and forty dollars. That said labor was performed and material was furnished for said Sherman Mining Company at the time in said account mentioned, under and by virtue of a contract between affiant, Landon A. Smith, and said Sherman Mining Company, by John Franks, its agent, and for work and labor upon a certain mining claim located on the premises hereinafter described; and affiant further makes oath, and says that the said Sherman Mining Company, at the time said contract was entered into and said labor was performed and said material was furnished, the owner of said mine, and *527 that said mine is situated on a certain lot of land owned by said Sherman Mining Company, and is situated, lying, and being in the State of Montana, county of Meagher, and is described as-follows: ‘A certain mine, lode or quartz claim, situated in Castle Mountain unorganized mining district, Meagher County, State of Montana, known, designated, and located as the “Sherman Quartz Mining Claim.”’

“ And this affiant, Landon A. Smith, claims a lien on the said premises. ' Landon A. Smith.

“Subscribed and sworn to before me this twenty-third day of December, A. D. 1890.

“Max Waterman, Notary Public.”

“Exhibit A. Landon A. Smith, in account with the Sherman Mining Company for work and labor done and performed in and upon the Sherman Mining Claim between the twenty-second day of October and the fifth day of December, A. D„ 1890, forty days in all, at $3.50 per day; total amount due, $140. Landon A. Smith.

“Filed for record on the twenty-third day of December, A. D.. 1890, at 11 o’clock, A. m. C. E. Wight, County Clerk.”

The testimony is not contained in the record, which consists-of the pleadings and judgment.

The appellant contends that the account of Smith does not conform to the statute, which requires that there shall be filed by the party claiming a lien “a just and true account of the amount due or owing to him after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit; but any error or mistake in the said account or description shall not affect the validity of said lien: provided, the property may be identified by said description.” (Comp. Stats, div. 5, § 1371.) It is insisted that there should be a statement of the items in the account, and the nature-of the work; and the brief cites authorities which support this contention. We have not deemed it necessary to investigate the statutes which underlie these decisions. Our courts have always favored a liberal construction of tins law, and it is held in Black v. Appolonio, 1 Mont. 346 , which was decided in the year 1871, that “ all ‘ our statute requires is that a person wish *528 ing to avail himself of the benefits of it should honestly state his account.’ The term ‘just and true account’ does not necessarily imply more than this. Neither does ‘a just or true account’ imply, necessarily, the exact account a jury or court might find due under the contract.” (Nolan v. Lovelock, 1 Mont. 224 ; Merrigan v. English, 9 Mont. 113 .) The language of the section, supra, confirms this interpretation by providing that an error or mistake shall not vitiate the lien. The exhibits should be construed together. It should be observed that the parties to this action do not include mortgagees or persons possessing similar interests in the property. Mr. Justice Field, in Davis v. Alvord, 94 U. S. 547 , has expressed succinctly the reasons for the strictness of the rule which is prescribed when the rights of such persons are involved: “ The commencement of the work must be shown, for from that date the lien attaches, if at all. The character of the work must be shown, for it is not for all kinds of work that a lien is allowed. The completion of the work must be shown, for notice of claiming a lien must be filed in the recorder’s office within sixty days from that time.” The facts which are essential to the validity of the lien when subject to this test are shown by the papers, and are sufficient in this record. It is clearly stated in the exhibits that Smith performed labor on said mining claim at certain wages for the period of forty days, between the twenty-second day of October and the fifth day of December, 1890, and has not received any sum in payment thereof. (Ainslie v. Kohn, 16 Or. 363 ; Lonkey v. Wells, 16 Nev. 274 ; Jewell v. McKay, 82 Cal. 150 ; Hagman v. Williams, 88 Cal. 146 .) The findings which constitute a part of the judgment, and are not attacked by the appellant, cover these points.

The most serious difficulty which is presented relates to the description of the Sherman Lode Mining Claim. There is no ■allegation in the pleadings or judgment which gives in clear and precise terms the boundaries of the property. The answer contains this averment: “That the land of the defendant upon which the plaintiff, L. A. Smith, seeks to impose a lien is outside of any town or city,- and embraces twenty acres of land; and that said plaintiff’s claim of lien contains no description or designation of the one acre to which such lien is limited.” The *529 statute is satisfied if “the property may be identified by said description.” It is further enacted “that the lien given . . . . shall extend to the lot or land upon which any such building, improvements, or structure is situated to the extent of one acre if outside of any town or city.” We have concluded that the restriction to one acre in the quantity of land which can be charged with the lien is not applicable to this action. The act of the first legislative assembly of the Territory, “securing liens to mechanics and others,” did not embrace work upon a lode mining claim. The statute which cured this omission was approved December 6, 1867, and has not been repealed. A person who complies with the law is entitled to a lien upon a “quartz lode” to secure the payment for his labor thereon. (Comp. Stats, div. 5, § 1370.) It is apparent that the words referring to a lot or tract of land upon which a building, structure, or improvement is situate did not specify an acre or interest in a lode mining claim. The case of Alvord v. Hendrie, 2 Mont. 115 , was decided in the year 1874, under legislation which is now in force; and it was adjudged that the plaintiff had a lien upon the entire interest of the owner in the lode mining claim. In Helm v. Chapman, 66 Cal. 292 , the court said: “We deem it our duty to give effect to the legislative purpose by holding that one who performs labor in any pit, shaft, or gallery of a mine is entitled to a lien on the whole mining claim.” In Willamette Steam Mills Co. v. Kremer, 94 Cal. 209 , Mr. Justice Harrison, for the court, said: “As a general rule, the sufficiency of the description is a question of fact to be determined by the trial court. The claimant is not required, before filing his claim of lien, to make an accurate survey of the lot upon which the building stands, at the risk of losing his lien if he makes a slight mistake in giving its boundaries; nor is he even required to give the boundaries of the lot.” In Tredinnick v. Red Cloud Min. Co. 72 Cal. 78 , it is said: “But, however this may be, we think the description by name was sufficient for the identification of the property. It appears from the evidence that the mine was well known, and commonly spoken of as the ‘Red Cloud Mine;’” and that by the word “mine” was meant “the whole claim or body of the mining ground.” (2 Jones on Liens, § 1421.) We cannot, in the light of the *530 authorities, hold that the description of the lode mining claim is so uncertain as to render the judgment void.

It is therefore ordered that the judgment be affirmed.

Affirmed.

Harwood, J., and De Witt, J., concur.