Abernathy v. Peterson

• Decision Date: 03 April 1924
• Citation: Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (Idaho 1924)
• Parties: HARRY ABERNATHY, Respondent, v. A. J. PETERSON and GUS ELMQUIST, Copartners Doing Business Under the Firm Name and Style of PETERSON & ELMQUIST, Defendants; C. R. SHAW WHOLESALE COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

225 P. 132

38 Idaho 727

HARRY ABERNATHY, Respondent, v. A. J. PETERSON and GUS ELMQUIST, Copartners Doing Business Under the Firm Name and Style of PETERSON & ELMQUIST, Defendants;

C. R. SHAW WHOLESALE COMPANY, a Corporation, Respondent

Supreme Court of Idaho

April 3, 1924

LABORER'S LIEN-LABOR UPON LOGS, LUMBER AND RAILROAD TIES-TIES INCLUDED IN LUMBER-"AT THE MILL"-APPEAL AND ERROR-ASSIGNMENTS OF ERROR-CONCLUSIONS OF LAW.

1. The words "at the mill" as used in C. S., sec. 7357 granting a laborer's lien on sawlogs manufactured into lumber, do not mean exclusively "contiguous to" or "attached to," but may mean "near," "in the vicinity of" or "connected with" the mill.

2. Where lumber and railroad ties are sawed at a sawmill and the same are taken directly from the saw and hauled to a lumber-yard six miles away, such lumber-yard being the only one belonging to and used in connection with the mill and the only yard controlled or operated by the manufacturers of the lumber, the same remained "at the mill where manufactured" within the meaning of C. S., sec. 7357, so as to entitle persons performing labor on the manufacture of the lumber and ties to a lien thereon.

3. Railroad ties sawed at a sawmill in the same manner as other lumber are "lumber" within the meaning of C. S sec. 7357, and not "other timber" within the meaning of C. S., sec. 7356.

4. Under C. S., sec. 7356, a logger has a lien, not only upon the logs cut, but upon the lumber manufactured therefrom, so long as it can be followed and identified.

5. An assignment of error complaining of the conclusions of law as a whole, without specifying in what particulars they are erroneous, is too general to be considered.

6. The provisions of our lien laws must be liberally construed with a view to carrying out their objects and to promote justice.

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. B. S. Varian, Judge.

Action to foreclose laborers' liens. Judgment for respondent. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Stinson Harris & McClure, L. L. Burtenshaw and Oppenheim & Lampert, for Appellant.

One who performs labor upon or who assists in manufacturing sawlogs into lumber has lien upon such lumber only while the same remains at the mill where manufactured. (C. S., sec. 7357; Swartwood v. Red Star Shingle Co., 13 Wash. 349, 43 P. 21; Judge v. Bay Mill Co., 18 Wash. 269, 51 P. 378; Robins v. Paulson, 30 Wash. 459, 70 P. 1113; Akers v. Lord, 67 Wash. 179, 121 P. 51; Douglas v. F. R. Woodbury Lbr. Co., 101 Wash. 668, 172 P. 906; Anderson v. Lee, 52 Ore. 92, 96 P. 234; First Nat. Bank v. Wegener, 94 Ore. 318, 181 P. 990, 186 P. 41.)

The words "at the mill" mean "near the mill." (Vaughan v. Fifer, 91 Wash. 553, 158 P. 93; Lovin v. Hicks, 116 Minn. 179, 133 N.W. 575; St. Louis S.W. Ry. Co. v. Stringer, 74 Ark. 425, 86 S.W. 280; New Standard Dictionary; Webster's New International Dictionary.)

One who renders assistance in procuring sawlogs has no lien upon the lumber manufactured therefrom for the work or labor done. (C. S., sec. 7356; Winsor v. Johnson, 5 Wash. 429, 32 P. 215; Dexter-Horton & Co. v. Sparkman, 2 Wash. 165, 25 P. 1070.)

Railroad ties are not lumber. (Anderson v. Great N. Ry. Co., 25 Idaho 433, Ann. Cas. 1916C, 191, 138 P. 127.)

Where liens are claimed under two sections of the statute, the amount claimed under each section must be separately stated. (Dexter-Horton & Co. v. Sparkman, supra; Robins v. Paulson, supra.)

George Donart and A. C. Cherry, for Respondent.

The lumber sawed at the sawmill and taken from the green chain directly to the yard six miles distant, where it was sorted, piled and dried, was "at the mill" and subject to a lien of the laborers who assisted in manufacturing the same. (C. S., secs. 7357, 9444; Vaughan v. Fifer, 91 Wash. 533, 158 P. 93; 5 C. J. 1627; McGeorge v. Stanton-DeLong Lumber Co., 131 Wis. 7, 110 N.W. 788; Armitage v. Bernheim, 32 Idaho 600, 187 P. 938; Hogsed v. Cloucester Lumber Co., 170 N.C. 529, 87 S.E. 337.)

One who performs labor upon or who renders assistance in procuring sawlogs has a lien both upon the logs and upon the lumber manufactured therefrom for such work and labor so performed, and such lien is not dependent upon the lumber remaining at the mill where manufactured. (C. S., sec. 7356; Shultz v. Shively, 72 Ore. 450, 143 P. 1115; Day v. Green, 63 Ore. 293, 127 P. 357; Fischer v. Cone Lumber Co., 49 Ore. 277, 89 P. 737; Forsberg v. Lungreen, 64 Wash. 427, 117 P. 244; Robins v. Paulson, 30 Wash. 459, 70 P. 1113; O'Brien v. Perfection Pile etc. Co., 49 Wash. 395, 95 P. 489; O'Connor v. Burnham, 49 Wash. 443, 95 P. 489; Anderson v. Great N. Ry. Co., 25 Idaho 433, Ann. Cas. 1916C, 191, and note thereto, 138 P. 127.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., concur. WM. E. LEE, J., Dissenting.

OPINION

BUDGE, J.

This action was brought by respondent to foreclose thirty-two liens. The complaint contains thirty-two causes of action, the first being based upon the individual lien of respondent and the remaining thirty-one upon claims of lien assigned to respondent. The defendants Peterson and Elmquist appeared and filed general and special demurrers to the complaint, which were overruled. Upon their failure to answer within the time allowed by the court their default was entered. Appellant also filed general and special demurrers. The general demurrer was overruled. The special demurrer was sustained as to causes of action Nos. 21 and 32, but inasmuch as no amendments were offered or filed and no judgment rendered on these causes of action they will be given no further consideration. All other special demurrers were overruled. Appellant thereupon filed its answer, which in effect constitutes a general denial. Upon the issues thus framed the cause was tried to the court sitting without a jury and judgment was rendered in favor of respondents, from which judgment this appeal is taken.

Three assignments of error are specified and relied upon by appellant. The first attacks the action of the court in overruling appellant's demurrer to the complaint and to each and every cause of action therein set forth. From the complaint it appears that causes of action Nos. 1 to 20, inclusive, are for the foreclosure of liens for labor performed and assistance rendered in the manufacture of lumber and railroad ties. Each cause of action contains, among others, the following allegation:

"The said lumber and railroad ties were sawed and manufactured at the saw mill aforesaid and were forthwith taken and transported by the said A. J. Peterson and Gus Elmquist, their agents and employees to a certain lumber yard situate at Council, Idaho, in said Adams County, near and adjacent to the Pacific and Idaho Northern Railroad wye, at said place, and were there piled, sorted, seasoned and dried preparatory to being loaded on the cars for shipment; That during all of said times the said lumber yard was operated by the said A. J. Peterson and Gus Elmquist in conjunction with said saw mill and as a part of said saw mill premises and was and is the only lumber yard by them operated; that the said yard is the first and only place at which the said lumber and ties, or any part thereof, were ever piled, stored or kept after the same were taken from the saw which sawed the same."

Appellant contends that since the complaint alleged that the lumber and railroad ties were removed from the mill where they were manufactured and were stacked in a lumber-yard at some distance, such lumber and railroad ties were not lienable within the provisions of C. S., sec. 7357, which provides as follows:

"Every person performing labor upon, or who shall assist in manufacturing, saw logs into lumber, has a lien upon such lumber while the same remains at the mill where manufactured, whether such work or labor was done at the instance of the owner of such logs or of his agents."

We are therefore called upon to determine whether, under the allegations of the complaint above set out, the lumber and railroad ties remained "at the mill where manufactured" within the meaning of C. S., sec. 7357, supra, so as to entitle respondent to a lien thereon. In approaching this question it will be well to keep in mind the rule that lien statutes are remedial in character and should be liberally construed in the interest of the laborer, and in this connection it may be advisable to call attention to C. S., sec. 9444, which reads as follows:

"The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to these compiled laws. The compiled laws establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice."

The trial court, in effect, held that the words "at the mill where manufactured" within the meaning of C. S., sec 7357, included the lumber-yard at Council, to which place the lumber and railroad ties were directly conveyed from the saw to be sorted, stacked and dried. The phrase "at the mill" is a relative term and can hardly be said to mean exclusively "contiguous to" or "attached to" the mill, but may mean "near," "in the vicinity of" or "connected with" the mill. The yard to which the lumber was conveyed was the only mill-yard belonging to and used in connection with the mill and the only yard controlled or operated by the manufacturers of the lumber. The term "mill" in its legal analysis means not merely the mill building but includes the mill-yard and everything necessary to its benefit. Should we be limited to a technical construction of the words "at the mill" a...