Eastern Ohio Oil Co. v. McEvoy

The opinion of the court was delivered by ' Porter, J.:

Can one who performs labor in drilling an oil- or gas-well on lands in which the owner of the well has no interest, except as holder of the ordinary oil-and-gas lease authorizing entry for the purpose of exploring for oil and gas, obtain a mechanic’s lien upon the leasehold interest or upon personal property belonging to the lessee which remains upon the land?

In some states there are statutory provisions extending mechanics’ liens to leasehold estates, but regardless of such provisions it seems to be settled that the word “owner” is not limited in its meaning to an owner of the fee. It has been held that a person in possession of real estate under a verbal promise of a conveyance to him in fee simple is an “owner.” (Drug Co. v. Brown, 46 Kan. 543 , 26 Pac. 1019 .) The term also includes an owner of a leasehold estate. In Hathaway v. Davis & Rankin, 32 Kan. 693 , 5 Pac. 29 , it was held that a lien for materials and labor may attach to a leasehold estate, and that such a lien attached to the buildings, fixtures and materials placed thereon by the tenant. (See, also, Choteau et al. v. Thompson & Campbell, 2 Ohio St. 114 ; Lyon v. McGuffey, 4 Pa. St. 126, 45 Am. Dec. 675 .)

The lessee may create a lien to the extent of his *517 right and interest in the land, but no further. (McCarty et al. v. Carter, 49 Ill. 53 , 95 Am. Dec. 572 .) A mechanic’s lien attaching to a leasehold estate is subject to all the terms of the lease. (Coburn v. Stephens et al., 137 Ind. 683 , 36 N. E. 132 , 45 Am. St. Rep. 218 .)

The record does not contain a copy of the lease in question, but the answer set up an ordinary oil-and-gas lease granting to the lessee the right to drill on the lands for oil and gas. The owner of such a lease has no interest in the lands except that of a mere licensee. The lease grants no estate in the land. It creates an incorporeal hereditament only — a license to enter and explore for oil and gas. (Dickey v. Brick Co., 69 Kan. 106 , 76 Pac. 398 ; Rawlings v. Armel, 70 Kan. 778 , 79 Pac. 683 ; Gas Co. v. Neosho County, ante, p. 335.) The lien must be measured by the extent of the owner’s interest. (Getto v. Friend, 46 Kan. 24 , 26 Pac. 473 ; Drug Co. v. Brown, 46 Kan. 543 , 26 Pac. 1019 .)

We have not been cited to any cases in point, but the conclusion we have reached is that the interest of the holder of such a lease will not support a mechanic’s lien under our statute. While the rule in this state is that the mechanic’s lien law must be construed liberally, it is nevertheless true that it will not be extended by the courts to cases which do not fall within its provisions. (Conroy v. Perry, 26 Kan. 472 ; Williams v. Vanderbilt, 145 Ill. 238 , 34 N. E. 476 , 21 L. R. A. 489, 36 Am. St. Rep. 486 .)

The demurrer to the petition should have been sustained. The judgment is therefore reversed and the case remanded, with directions to sustain the demurrer.