Williams v. Toledo Coal Co.

Opinion by Mr. Justice Moore.

This suit is brought under the act of eighteen hundred and ninety one, (Laws, 1891, p. 76,) to enforce an alleged lien on the property of the Toledo Coal Company. 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, 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” (with some provisos not material here). It will be seen that said section gives the following liens: (1) To every person who shall do work or furnish materials for the working or development of any mine, etc.; (2) To every person who shall do work or furnish materials for the working or development of any such mine in searching for such materials or metals; and, (3) To all persons who shall do work or furnish materials upon any shaft, tunnel, incline, adit, drift, or other excavation *430 designed or used for the purpose of- draining or working any such mine, lode, or deposit.

1. If the term “ any such mine,” in the second clause, relates to and means any mine, lode, mining claim, or deposit yielding metals or minerals, then a lien, could not be acquired unless the search had been rewarded by a discovery of metals or minerals. Can it be supposed that the legislative assembly intended that the miner who had, at the request of the owner, performed labor or furnished materials in developing a mining claim, or in searching for metals or minerals therein, would be denied the benefit of a lien because his labor had not brought to light the hidden treasures of the earth? If that were the rule, then the miner who, in developing a claim, discovers indications of metals or minerals, could be discharged just before bringing to light the object of his search, and be deprived of any remedy against such claim for his labor or materials, while the employer, with a single blow of the pick or an additional blast, might reveal the wealth for which the laborer had toiled. Such a harsh rule could never have been intended, as its manifest effect would be to discourage the development of mines and the search for metals or minerals by men of moderate means. Under the law, as we understand it, the prospector or discoverer of lands supposed to contain metals or minerals is able to secure aid in prosecuting his search, as the miner is much more willing to give his services in developing mining property when encouraged by the assurance of reward for his labor which a lien on the property is likely to afford. Both parties would thus have a common interest in the development of the claim, and, though a lien would probably not amount to much unless a discovery were made, the miner, though he might be disappointed, would not be deceived thereby.

It- is evident that the term “ any such mine,” in the *431 last clause, refers to the mines mentioned in those preceding: That is, (1) to a mine that is being operated for the purpose of obtaining metals or minerals, or mining proper; (2)to labor or materials furnished in searching for metals or minerals in any designated tract that is supposed to contain them, or prospecting. Mining and prospecting are generic terms, which include the whole mode of obtaining metals and minerals, and the lien is given to every person who shall do work or furnish materials either in mining or prospecting. A lien is also given to all persons who shall do work upon or furnish materials for any shaft, etc., used for the purpose of draining or working any mine in which metals or minerals have been discovered, and to all persons who shall do work or furnish materials for any shaft, etc., designed for the purpose of working or draining any mine or place in which metals or minerals are supposed to exist, and such labor has been performed or materials furnished in prospecting for them.

2. A lien for labor performed or for material furnished in the construction, repair, or improvement of property is a remedy given by law, and unless the notice filed by the claimant shows prima facie upon its face a substantial compliance with all the essential statutory provisions, no lien is thereby created, however equitable the claim may be: Phillips on Liens (3d Ed.), § 9; Gordon v. Deal, 23 Or. 153 , 31 Pac. 287 . The claimant must by his notice clearly bring his claim within the provisions of the statute, and show that the labor was performed upon, or the materials were furnished for, the construction, repair, or improvement of that class of property which the statute has made liable for the payment thereof, in order to be entitled to its remedial advantages: Barclay's Appeal, 13 Pa. St. 495. Examining the notice in the light of the foregoing rules, it appears that a portion of the *432 labor was performed in building a wagon road which is not alleged, either in the notice or complaint, to be an incline or excavation. No provision is made by the statute for constructing wagon roads, however necessary they may be to the successful operation of a mine. When liens are given for certain specified work, the rule of expressio unius est exclusio alterius applies (Phillips on Liens, 3d Ed. § 156), and hence no lien could attach for .this class of work.

3. An account containing a lumping charge, in which is mingled an item for which no lien is given, will not support a lien; and the defect cannot be cured by oral evidence, by means of which the items for which a lien is given may be separated from those for which a lien is not given: 2 Jones on Liens, § 1419. In Dalles Lumber and Mfg. Co. v. Wasco Woolen Mfg. Co. 3 Or. 527 , it was held that a corporation incorporated for the purpose of manufacturing and selling lumber could not acquire a lien for labor, and that, having joined in a lumping charge a claim for labor with that for material, no lien was thereby created. So in Kezartee v. Marks, 15 Or. 529 , 16 Pac. 407 , it was also held that a lumping charge for material furnished and used in the construction of a dwelling-house and fence did not create a lien upon the house, when that alone was sought to be charged by the lien. Following the rule established by these decisions, we hold that the claim for building the wagon road cannot be joined in a lumping charge with one for digging a ditch or running a tunnel, and, the claimant having joined them in his notice, no lien attached to the premises by reason thereof. Many other objections are made to the sufficiency of the notice, which we do not deem necessary to consider. It follows from the foregoing that the decree must be affirmed, and it is so ordered.

Affirmed.