Antlers Park Regent Min. Co. v. Cunningham

• Decision Date: 03 February 1902
• Citation: 29 Colo. 284,68 P. 226
• Parties: ANTLERS PARK REGENT MIN. CO. v. CUNNINGHAM et al. SAME v. VINCENT.
• Court: Colorado Supreme Court

68 P. 226

29 Colo. 284

ANTLERS PARK REGENT MIN. CO. v. CUNNINGHAM et al.

SAME v. VINCENT.

Supreme Court of Colorado

February 3, 1902

APPEALS FROM county and district courts, Mineral county.

Actions by James Cunningham and another against the Antlers Park Regent Mining Company, and by Thomas W. Vincent against the same. From judgments for plaintiffs, defendant appeals. Reversed.

These actions were commenced by the respective appellees to foreclose mechanics' liens upon mining property the title to which is vested in appellant. The latter was the lessor of the premises upon which the liens are claimed. The work performed and materials furnished on account of which the liens are asserted were performed and furnished at the instance of the lessee. From a judgment establishing liens upon the title of the lessor in the leased premises for the amount of the claims of the respective appellees, with attorney's fees, the lessor brings the cases here for review on appeal. The legal questions involved in each case are the same, and, the premises having been operated by the lessee under one and the same lease, the causes were argued and submitted together, and will be disposed of in one opinion.

W. H. Bryant and C. H. Pierce, for appellant.

Albert L. Moses, for appellees James B. Cunningham and others.

Albert L. Moses and Joseph C. Helm, for appellee Thomas W. Vincent.

GABBERT J.

In Davidson v. Jennings, 27 Colo. 187, 60 P. 354, 48 L.R.A. 340 it was expressly held that the part of the mechanic's lien act which provides for the taxing of a fee for plaintiff's attorney as costs in all suits of foreclosure of such liens, in which plaintiff shall obtain a judgment and decree of foreclosure, is unconstitutional and void. The question is so fully discussed in that case, and the reasons given for the conclusion so clear and satisfactory, that it is unnecessary to rediscuss it here.

Since these causes were tried below, this court, in Wilkins v Abell, 26 Colo. 462, 58 P. 612, has determined that, under the law by virtue of which the liens in question are asserted, a mechanic's lien will not attach to the interest of the owner of a mine for work done or material furnished in working or developing the mine where the work is done or material furnished at the instance of, or under contract with, one whose interest in the demised premises and relation to the lessor is that of lessee only. We are now urged to reconsider the ruling in that case. This we must decline to do. Liens of the character under consideration are purely creatures of the statute. They neither exist nor can be enforced, except in cases falling within its purview. The conclusion announced in Wilkins v. Abell, supra, is so manifestly sound, so fully supported by the authorities cited, and the reasoning adopted in construing the statute so convincing, that nothing can be gained by a further discussion of the question at this time.

It is claimed, however, on behalf of the appellees, that their cases are distinguishable from Wilkins v. Abell, because of the peculiar terms and conditions of the lease under which the lessee operated the mining premises against which the liens are sought to be established. The lease in question provides, in substance, that, as a part consideration for its execution the lessee shall erect upon the leased premises a mill for the treatment of the ore mined from the property of a capacity not less than what is known and understood as a 'ten-stamp mill,' and that the mill and all machinery, boilers, pumps, shaft houses, buildings, or other permanent improvements erected or placed upon the property by the lessee during the term of the lease, shall, at its expiration, become the property of the lessor without further compensation. Its other provisions are such as are ordinarily incorporated in mining leases. At least, it contains no others authorizing the lessee to make any specific improvements upon the leased premises. Counsel for appellees contend that inasmuch as, by the express terms of the lease, the lessee was required to...