Alaska Consolidated Oil Fields v. Rains

• Decision Date: 05 January 1932
• Docket Number: No. 6366.,6366.
• Citation: 54 F.2d 868
• Parties: ALASKA CONSOLIDATED OIL FIELDS et al. v. RAINS.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F.2d 868 (1932)

ALASKA CONSOLIDATED OIL FIELDS et al. v. RAINS.^*

No. 6366.

Circuit Court of Appeals, Ninth Circuit.

January 5, 1932.

Winter S. Martin, Arthur Collett, Jr., and Harry S. Redpath, all of Seattle, Wash., for appellants.

Donohoe & Dimond, Anthony J. Dimond, and Thomas M. Donohoe, all of Cordova, Alaska, for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.

WILBUR, Circuit Judge.

Appellee brought this action to foreclose mechanics' liens for work done by himself and others in connection with the drilling of oil wells upon "certain oil mining claims" described in the complaint. The trial court entered a decree foreclosing such liens, and appellants have appealed on the ground that all the lands described in the complaint and in the decree, with the exception of Chilcat No. 11 claim, were being operated by appellants under oil and gas prospecting permits issued to them under the Oil Leasing Act of Congress, approved February 25, 1920 (41 Stat. 437). It is claimed by appellants that "the title to the patented and permit lands aforesaid rests and did rest in the United States of America during all the time and times said work was performed or materials furnished." Appellants state the principal issue as follows: "Have defendants (appellants) such an interest in said oil claims under the oil and gas prospecting permits as to subject them to the alleged liens of the plaintiff (appellee)?"

It is clear that the decree of foreclosure would not be binding in any way upon the United States, and that the only interest which could be sold under the decree would be the interest of the appellants in and to the land in question. It would be necessary in order that the rights of the permittee be transferred to the purchaser at the foreclosure sale that the purchaser secure the consent of the Secretary of the Interior to the assignment. 30 USCA § 187. If the appellants have such an interest in the land as may properly be subjected to a decree of foreclosure for mechanics' liens for labor done upon the property, they cannot be heard to complain of the fact that a purchaser at a foreclosure sale would not thereby secure title to the permit, in the absence of the consent of the Secretary of the Interior and the acceptance by him of the purchaser as the permittee under the original permit. So far as the interest of the United States is concerned, it is fully protected by the Oil Leasing Act.

The claim of appellants seems to be that foreclosure of a mechanic's lien is not authorized by the Mechanic's Lien Law of the territory of Alaska. The claim is stated as follows: "The liens attempted to be foreclosed in the case at bar are based upon Chapter 38 of the Session Laws of Alaska for 1921. Under this Act it is provided that liens shall exist for certain specified work, etc., done by virtue of a contract expressed or implied with the owner, part-owner or lessee of any interest in real estate, or with the authorized agent, owner, or part-owner, or lessee of such owner."

The act of the territorial Legislature referred to (chapter 38, Session Laws of Alaska, 1921) is in part as follows:

"Section 1. Every person, corporation, firm, association, or co-partnership, material man, artisan, laborer, or mechanic who does work or labor upon, or furnishes material, machinery or fuel for constructing, altering, digging, drilling, boring, operating, completing or repairing of any gas well, oil well or other well, or for altering, repairing, or constructing any oil derrick, oil tank, oil or gas pipe line, by virtue of a contract expressed or implied, with the owner, part owner, or lessee of any interest in real estate or with the authorized agent of the owner or part owner or lessee of such owner, * * * shall have a lien to secure the payment thereof upon said gas well, oil well or other well, or upon said oil derricks, oil tanks, oil or gas pipe line and upon the drills, apparatus, tools, machinery, materials or equipment so furnished for or used in the construction, alteration or repairing of said oil, gas or other wells, and all buildings and appurtenances thereof and the interest, leasehold or otherwise of the owner, part owner or lessee in the plot or tract of land upon which said improvement may be located. * * *"

"Section 3. The liens provided for in this Act shall bind the right, title and interest of the person or persons referred to in Section 1, at whose instance or request, or for whom the work or labor was done to the full extent of the interest which such person or persons had in the lienable property at the commencement of the work for which the lien is claimed * * * and in the event that the ownership of the land, drills, apparatus, machinery, tools and equipment upon which the liens of laborers, mechanic and artisans may be claimed as hereinbefore in section one provided, is in other than the person or persons at whose instance or request or for whom the work or labor was done or there is a mortgage on such property, the liens provided for herein shall bind the interests of such owner or mortgagee therein unless within ten days after the commencement of work or labor by the possessor thereof * * * such owner or mortgagee shall post a notice in a conspicuous place * * * setting forth his interest and title in the same and that he and the same will not be responsible for claims of laborers employed in and about the same."

"Section 7. The lien provided for in this Act shall be enforced by an action in the district courts of the Territory of Alaska having jurisdiction to enforce liens, and the pleadings, processes, practice and other proceedings shall be governed by the laws of the Territory regulating the trial of actions for the enforcement of liens and said actions shall be governed and said liens shall be construed in accordance with the provisions of Chapter 13 of the laws of the Territory of Alaska, 1915." (Italics ours.)

By the provisions of section 7 of the act of 1921, above quoted, the territorial Legislature expressly provided that such liens shall be construed in accordance with the provisions of chapter 13 of the Laws of the territory of Alaska 1915, which provides as follows:

"Section 1. Every person who at the instance of the owner performs work or labor in, on or about a mine or mining claim in opening up, developing, sinking, drifting, stoping, mucking, shoveling, mining, hoisting or performs any other class or kind of work on, in or about a mine or mining claim necessary or convenient to the development, operation, working or mining thereof, or the extraction of the earth, rock, quartz, ore, minerals, or mineral bearing sands or gravels therefrom, or performs any work or labor in or about such mine or mining claim tending to or assisting in the separation or reduction to a commercial value of the minerals contained therein, or thereon or extracted thereform, shall have a lien on such mine or mining claim to secure the payment of the amount due for such work or labor. * * *"

"Section 4. The liens provided for in this Act shall bind all the right, title and interest of the person or persons at whose instance or request or for whom the work or labor was performed, to the full extent of the interest which such person or persons had at the commencement of the work for which the lien is claimed, or subsequently acquired, up to the time of foreclosure as hereinafter set forth, in the mine or mining claim in or about which the work or labor was performed. * * *" (Italics ours.)

This act, like that of 1921, provides for notice being given by the owner to prevent the lien attaching as against his interest in the property: "Section 5. All work and labor performed in, on or upon a mine or mining claim at the instance of any person in privity with, or having the right of possession, or privilege of working or mining thereon from the owner or his authorized agent, in prospecting, opening up, developing, mining, or in doing any other class of work necessary or convenient to the opening up, development or mining of such mine or mining claim, or the separation or reduction to a commercial value of the minerals therein, thereon, or extracted therefrom, shall be deemed to have been done at the instance of the owner of the mine or mining claim, and such owner's interests therein shall be subject to any lien filed in accordance with the provisions of this Act, unless such owner shall * * * give notice that he will not be responsible for the same, by posting notices in writing to that effect, in three conspicuous places on such mine or mining claim. * * *"

In considering the effect of these two statutes, the history of locators of government owned petroleum land and other rights under the statutes of the United States should be considered. For that reason, we have hereinafter quoted at considerable length from a decision of this court written by Judge Ross in Consolidated Mut. Oil Co. v. United States, 245 F. 521. In view of the decisions cited by Judge Ross in that case, and hereinafter quoted, it may be said without further reference thereto that they clearly indicate that under the Alaska statutes of 1915 and 1921 a claimant would undoubtedly have a lien for work done upon such a placer mining claim.

It was held by this court in October, 1912, in Rooney v. Barnette, 200 F. 700, 710, that a locator of mineral land prior to discovery had a right of possession which he could convey to another. It was there stated by Judge Morrow:

"The location of mineral ground gives to the locator before discovery, and while he complies with the statutes of the United States and the state and local rules and regulations, the valuable right of possession against all intruders, and this right he can convey to another.

"`Mineral ground covered by a valid location becomes segregated from the public domain, and is the property of the locator; and, so long as the locator complies with the...