Barnard v. McKenzie

• Decision Date: 01 October 1878
• Citation: 4 Colo. 251
• Court: Colorado Supreme Court
• Parties: BARNARD, Ad'r, etc. v. McKENZIE.

4 Colo. 251

BARNARD, Ad'r, etc. v. McKENZIE.

Supreme Court of Colorado

October, 1878

Appeal from District Court of Lake County.

THE facts are sufficiently stated in the opinion.

Messrs MILLER & CLOUGH, for appellant.

Mr CHARLES S. THOMAS, for appellee.

ELBERT J.

This was a petition to enforce a mechanics' lien on the Berry tunnel, under the provision of the lien law of 1872. Sess Laws, 1872, p. 147.

Section four of the act provides, that 'all miners, laborers and others who work or labor to the amount of twenty-five dollars or more, in or upon any mine, lode or deposit, yielding metals or minerals of any kind, or upon any shaft, tunnel adit or other excavation designed or used for the purpose of draining or working any such mine, lode or deposit, and all persons who shall furnish any timber or other material to the amount of twenty-five dollars or more, to be used in or about any such mine, lode or deposit, shall have and may each respectively claim and hold a lien upon such mine, lode or deposit, for the amount and value of the work or labor so performed or material furnished, by filing in the county clerk and recorder's office of the county in which such mine, lode or deposit is situated, within forty days after the time when the last work or labor was performed, or the last materials were furnished by him, a statement as required by section two of this act.'

The answer of the defendant Bruce admits the filing of a statement by McKenzie, the lien claimant, under the provisions of the act.

McKenzie's employment appears to have commenced in November, 1875, and continued until the 29th of June, 1876, at which time the last work was done. His claim is for $518, in some part for material furnished, but chiefly for work and labor in hauling ores from the mine. The evidence discloses that there was no material furnished nor work or labor performed by McKenzie, in or upon the mine after the 15th of June, 1876, except hauling ores from the mine to the stamp mill.

The statement was filed July 27, 1876, and was not within the forty days limited by the act, unless we can say that one who is employed to haul ore from a mine after it has been taken from the shaft or tunnel, is entitled to a lien under the provisions of the section cited.

Laws giving the mechanic and material-man a lien on real property, their labor or capital has contributed to improve and enhance in value, are founded in manifest equity. Such legislation is in behalf of a large and meritorious class, poorly able as a rule to sustain loss, and little qualified to secure themselves against it by safeguards of their own suggestion.

Notwithstanding the lien was unknown to the common law and is purely the creature of the statute, in view of its equitable character, we think the statute giving it should be liberally construed so as to advance its objects.

The lien, however, is purely statutory and cannot re extended...